1
EN BANC recommendation on the reported unexplained wealth of Ramas. The relevant part
[G.R. No. 104768. July 21, 2003]
Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General
Josephus Q. Ramas and Elizabeth Dimaano, respondents.
DECISION
The Case
Before this Court is a petition for review on certiorari seeking to set aside the
Resolutions of the Sandiganbayan (First Division)[1] dated 18 November 1991 and
25 March 1992 in Civil Case No. 0037. The first Resolution dismissed petitioners
Amended Complaint and ordered the return of the confiscated items to
respondent Elizabeth Dimaano, while the second Resolution denied petitioners
Motion for Reconsideration. Petitioner prays for the grant of the reliefs sought in
its Amended Complaint, or in the alternative, for the remand of this case to the
Sandiganbayan (First Division) for further proceedings allowing petitioner to
complete the presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA
Revolution, then President Corazon C. Aquino issued Executive Order No. 1 (EO No.
1) creating the Presidential Commission on Good Government (PCGG). EO No. 1
primarily tasked the PCGG to recover all ill-gotten wealth of former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates. EO No. 1 vested the PCGG with the power (a) to conduct investigation
as may be necessary in order to accomplish and carry out the purposes of this
order and the power (h) to promulgate such rules and regulations as may be
necessary to carry out the purpose of this order. Accordingly, the PCGG, through its
then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board)
tasked to investigate reports of unexplained wealth and corrupt practices by AFP
personnel, whether in the active service or retired.[2]
Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas (Ramas). On
27 July 1987, the AFP Board issued a Resolution on its findings and
of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house and lot
located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and
lot located in Cebu City. The lot has an area of 3,327 square meters.
The value of the property located in Quezon City may be estimated modestly
at P700,000.00.
The equipment/items and communication facilities which were found in the
premises of Elizabeth Dimaano and were confiscated by elements of the PC
Command of Batangas were all covered by invoice receipt in the name of CAPT.
EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have been in
the possession of Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
Aside from the military equipment/items and communications equipment, the
raiding team was also able to confiscate money in the amount of P2,870,000.00
and $50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command,
Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and
stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga,
Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in a car went to the
residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible
means of income and is supported by respondent for she was formerly a mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also

impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth.Were it not for the affidavits of the
members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna,
the existence and ownership of these money would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for
scrutiny and analysis by the Boards consultant. Although the amount
of P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed
that respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of P2,974,134.00
and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be
prosecuted and tried for violation of RA 3019, as amended, otherwise known as
Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known
as The Act for the Forfeiture of Unlawfully Acquired Property.[3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act
No. 1379 (RA No. 1379) [4] against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez
filed an Amended Complaint naming the Republic of the Philippines (petitioner),
represented by the PCGG, as plaintiff and Ramas as defendant. The Amended
Complaint also impleaded Elizabeth Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the
Philippine Army until 1986. On the other hand, Dimaano was a confidential agent
of the Military Security Unit, Philippine Army, assigned as a clerk-typist at the office
of Ramas from 1 January 1978 to February 1979. The Amended Complaint further
alleged that Ramas acquired funds, assets and properties manifestly out of
proportion to his salary as an army officer and his other income from legitimately
2
acquired property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the
Philippines and as a subordinate and close associate of the deposed President
Ferdinand Marcos.[5]
The Amended Complaint also alleged that the AFP Board, after a previous inquiry,
found reasonable ground to believe that respondents have violated RA No.
1379.[6] The Amended Complaint prayed for, among others, the forfeiture of
respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory
Counterclaim to the Amended Complaint. In his Answer, Ramas contended that his
property consisted only of a residential house at La Vista Subdivision, Quezon City,
valued at P700,000, which was not out of proportion to his salary and other
legitimate income. He denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the house of
Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from January-November 1978
only, Dimaano claimed ownership of the monies, communications equipment,
jewelry and land titles taken from her house by the Philippine Constabulary raiding
team.
After termination of the pre-trial,[7] the court set the case for trial on the merits on
9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its
lack of preparation for trial and the absence of witnesses and vital documents to
support its case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in
order to charge the delinquent properties with being subject to forfeiture as having
been unlawfully acquired by defendant Dimaano alone x x x.[8]
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with
petitioners presentation of evidence on the ground that the motion for leave to
amend complaint did not state when petitioner would file the amended
complaint. The Sandiganbayan further stated that the subject matter of the
amended complaint was on its face vague and not related to the existing
complaint. The Sandiganbayan also held that due to the time that the case had
been pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the
trial.
 3

On 28 September 1989, during the continuation of the trial, petitioner manifested
its inability to proceed to trial because of the absence of other witnesses or lack of
further evidence to present. Instead, petitioner reiterated its motion to amend the
complaint to conform to the evidence already presented or to change the
averments to show that Dimaano alone unlawfully acquired the monies or
properties subject of the forfeiture.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed a Joint
Comment/Opposition to which petitioner filed its Reply on 10 January 1992.

The Sandiganbayan noted that petitioner had already delayed the case for over a On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion
year mainly because of its many postponements. Moreover, petitioner would want for Reconsideration.
the case to revert to its preliminary stage when in fact the case had long been
ready for trial. The Sandiganbayan ordered petitioner to prepare for presentation
of its additional evidence, if any.
Ruling of the Sandiganbayan
During the trial on 23 March 1990, petitioner again admitted its inability to present
further evidence. Giving petitioner one more chance to present further evidence or
to amend the complaint to conform to its evidence, the Sandiganbayan reset the The Sandiganbayan dismissed the Amended Complaint on the following grounds:
trial to 18 May 1990. The Sandiganbayan, however, hinted that the re-setting was
without prejudice to any action that private respondents might take under the (1.) The actions taken by the PCGG are not in accordance with the rulings of
circumstances. the Supreme Court in Cruz, Jr. v. Sandiganbayan[10] and Republic v.
Migrino[11] which involve the same issues.
However, on 18 May 1990, petitioner again expressed its inability to proceed to
trial because it had no further evidence to present. Again, in the interest of justice,
the Sandiganbayan granted petitioner 60 days within which to file an appropriate (2.) No previous inquiry similar to preliminary investigations in criminal cases
pleading. The Sandiganbayan, however, warned petitioner that failure to act would was conducted against Ramas and Dimaano.
constrain the court to take drastic action.
(3.) The evidence adduced against Ramas does not constitute a prima
Private respondents then filed their motions to dismiss based on Republic v. facie case against him.
Migrino.[9] The Court held in Migrino that the PCGG does not have jurisdiction to
investigate and prosecute military officers by reason of mere position held without
a showing that they are subordinates of former President Marcos. (4.) There was an illegal search and seizure of the items confiscated.

On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive

portion of which states:
The Issues

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint,

without pronouncement as to costs. The counterclaims are likewise dismissed for
lack of merit, but the confiscated sum of money, communications equipment,
jewelry and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon.
Ombudsman, who has primary jurisdiction over the forfeiture cases under R.A. No.
1379, for such appropriate action as the evidence warrants. This case is also
referred to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano in connection
herewith.
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT
PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND THAT
THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN RESPONDENT RAMAS AND
RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT SUCH
CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN

RENDERED PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS
TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE ORIGINAL
COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE STRUCK OUT IN
LINE WITH THE RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.
Migrino, supra, are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil Case
No. 0037 was cured and/or waived by respondents with the filing of their
respective answers with counterclaim; and
3. The separate motions to dismiss were evidently improper considering
that they were filed after commencement of the presentation of the
evidence of the petitioner and even before the latter was allowed to
formally offer its evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES
AND THINGS SUCH AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT,
JEWELRY AND LAND TITLES CONFISCATED FROM THE HOUSE OF
RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED
AS EVIDENCE.[12]
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in Cruz,
Jr. v. Sandiganbayan[13] and Republic v. Migrino.[14]
4
The primary issue for resolution is whether the PCGG has the jurisdiction to
investigate and cause the filing of a forfeiture petition against Ramas and Dimaano
for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and
corrupt practices of AFP personnel, whether in the active service or retired. [15] The
PCGG tasked the AFP Board to make the necessary recommendations to
appropriate government agencies on the action to be taken based on its
findings.[16] The PCGG gave this task to the AFP Board pursuant to the PCGGs power
under Section 3 of EO No. 1 to conduct investigation as may be necessary in order
to accomplish and to carry out the purposes of this order. EO No. 1 gave the PCGG
specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether located
in the Philippines or abroad, including the takeover and
sequestration of all business enterprises and entities owned
or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public
office and/ or using their powers, authority, influence,
connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and
corrupt practices of AFP personnel who fall under either of the two categories
mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have
accumulated ill-gotten wealth during the administration of former President
Marcos by being the latters immediate family, relative, subordinate or close
associate, taking undue advantage of their public office or using their powers,
influence x x x;[17] or (2) AFP personnel involved in other cases of graft and
corruption provided the President assigns their cases to the PCGG. [18]
Petitioner, however, does not claim that the President assigned Ramas case to the
PCGG. Therefore, Ramas case should fall under the first category of AFP personnel

before the PCGG could exercise its jurisdiction over him. Petitioner argues that
Ramas was undoubtedly a subordinate of former President Marcos because of his
position as the Commanding General of the Philippine Army. Petitioner claims that
Ramas position enabled him to receive orders directly from his commander-in-
chief, undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the
sense contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a
subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that
he enjoyed close association with former President Marcos. Migrino discussed this
issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is
contemplated within the term subordinate. The Whereas Clauses of EO No. 1
express the urgent need to recover the ill-gotten wealth amassed by former
President Ferdinand E. Marcos, his immediate family, relatives, and close associates
both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have any interest
or participation.
Applying the rule in statutory construction known as ejusdem generis that is-
[W]here general words follow an enumeration of persons or things by words of a
particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same
kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of
Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2ndEd., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or his wife, similar to the
immediate family member, relative, and close associate in EO No. 1 and the close
relative, business associate, dummy, agent, or nominee in EO No. 2.
It does not suffice, as in this case, that the respondent is or was a government
official or employee during the administration of former President Marcos. There
must be a prima facie showing that the respondent unlawfully accumulated
5
wealth by virtue of his close association or relation with former Pres. Marcos
and/or his wife. (Emphasis supplied)
Ramas position alone as Commanding General of the Philippine Army with the rank
of Major General[19] does not suffice to make him a subordinate of former
President Marcos for purposes of EO No. 1 and its amendments. The PCGG has to
provide a prima facie showing that Ramas was a close associate of former
President Marcos, in the same manner that business associates, dummies, agents
or nominees of former President Marcos were close to him. Such close association
is manifested either by Ramas complicity with former President Marcos in the
accumulation of ill-gotten wealth by the deposed President or by former President
Marcos acquiescence in Ramas own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not
convince us. Petitioner argues that unlike in Migrino, the AFP Board Resolution in
the instant case states that the AFP Board conducted the investigation pursuant to
EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is
a presumption that the PCGG was acting within its jurisdiction of investigating
crony-related cases of graft and corruption and that Ramas was truly a subordinate
of the former President. However, the same AFP Board Resolution belies this
contention. Although the Resolution begins with such statement, it ends with the
following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be
prosecuted and tried for violation of RA 3019, as amended, otherwise known as
Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known
as The Act for the Forfeiture of Unlawfully Acquired Property.[20]
Thus, although the PCGG sought to investigate and prosecute private respondents
under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic
Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This
absence of relation to EO No. 1 and its amendments proves fatal to petitioners
case. EO No. 1 created the PCGG for a specific and limited purpose, and necessarily
its powers must be construed to address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint
do not show that the properties Ramas allegedly owned were accumulated by him
in his capacity as a subordinate of his commander-in-chief. Petitioner merely

enumerated the properties Ramas allegedly owned and suggested that these
properties were disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association with former
President Marcos. Petitioner, in fact, admits that the AFP Board resolution does
not contain a finding that Ramas accumulated his wealth because of his close
association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New Armed
Forces of the Philippines did not categorically find a prima facie evidence showing
that respondent Ramas unlawfully accumulated wealth by virtue of his close
association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the objective of the
investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019
and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;[21] (Emphasis
supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima
facie showing that the ill-gotten wealth was accumulated by a subordinate of
former President Marcos that vests jurisdiction on PCGG. EO No. 1[22] clearly
premises the creation of the PCGG on the urgent need to recover all ill-gotten
wealth amassed by former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such omission was not
fatal is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that fall under
the jurisdiction of the PCGG pursuant to EO Nos. 1, 2,[24] 14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with
Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action for the recovery
of ill-gotten wealth under Republic Act No. 1379, accumulated by
former President Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines
or abroad, including the take-over or sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through his nominees, by taking undue
advantage of their public office and/or using their powers, authority
and influence, connections or relationships; and
6
(b) the investigation and prosecution of such offenses committed in
the acquisition of said ill-gotten wealth as contemplated under
Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous authority of
the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction
over such cases is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city prosecutors, their assistants,
the Chief State Prosecutor and his assistants and the state prosecutors. (Emphasis
supplied)
The proper government agencies, and not the PCGG, should investigate and
prosecute forfeiture petitions not falling under EO No. 1 and its amendments. The
preliminary investigation of unexplained wealth amassed on or before 25 February
1986 falls under the jurisdiction of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor General. [27] The
Ombudsman Act or Republic Act No. 6770 (RA No. 6770) vests in the Ombudsman
the power to conduct preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986.[28]
After the pronouncements of the Court in Cruz, the PCGG still pursued this
case despite the absence of a prima facie finding that Ramas was a subordinate of
former President Marcos. The petition for forfeiture filed with the Sandiganbayan
should be dismissed for lack of authority by the PCGG to investigate respondents
since there is no prima facie showing that EO No. 1 and its amendments apply to
respondents. The AFP Board Resolution and even the Amended Complaint state
that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas case to the Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth and graft cases. As stated
in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause
the prosecution of private respondent for violation of Rep. Acts Nos. 3019 and
1379, the PCGG must also be enjoined from proceeding with the case, without
prejudice to any action that may be taken by the proper prosecutory agency. The
rule of law mandates that an agency of government be allowed to exercise only the
powers granted to it.

Petitioners argument that private respondents have waived any defect in the
filing of the forfeiture petition by submitting their respective Answers with
counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no
jurisdiction to waive in the first place. The PCGG cannot exercise investigative or
prosecutorial powers never granted to it. PCGGs powers are specific and
limited. Unless given additional assignment by the President, PCGGs sole task is
only to recover the ill-gotten wealth of the Marcoses, their relatives and
cronies.[29] Without these elements, the PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to
investigate and prosecute their cases by filing their Motion to Dismiss as soon as
they learned of the pronouncement of the Court in Migrino. This case was decided
on 30 August 1990, which explains why private respondents only filed their Motion
to Dismiss on 8 October 1990.Nevertheless, we have held that the parties may
raise lack of jurisdiction at any stage of the proceeding.[30] Thus, we hold that there
was no waiver of jurisdiction in this case. Jurisdiction is vested by law and not by
the parties to an action.[31]
Consequently, the petition should be dismissed for lack of jurisdiction by the
PCGG to conduct the preliminary investigation. The Ombudsman may still conduct
the proper preliminary investigation for violation of RA No. 1379, and if warranted,
the Solicitor General may file the forfeiture petition with the
Sandiganbayan.[32] The right of the State to forfeit unexplained wealth under RA
No. 1379 is not subject to prescription, laches or estoppel.[33]
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case
before completion of the presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we
find that petitioner has only itself to blame for non-completion of the presentation
of its evidence. First, this case has been pending for four years before the
Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11
August 1987, and only began to present its evidence on 17 April 1989. Petitioner
had almost two years to prepare its evidence. However, despite this sufficient time,
7
petitioner still delayed the presentation of the rest of its evidence by filing
numerous motions for postponements and extensions. Even before the date set for
the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for
Leave to Amend the Complaint.[34]The motion sought to charge the delinquent
properties (which comprise most of petitioners evidence) with being subject to
forfeiture as having been unlawfully acquired by defendant Dimaano alone x x x.
The Sandiganbayan, however, refused to defer the presentation of
petitioners evidence since petitioner did not state when it would file the amended
complaint. On 18 April 1989, the Sandiganbayan set the continuation of the
presentation of evidence on 28-29 September and 9-11 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28 September 1989,
petitioner manifested its inability to proceed with the presentation of its
evidence. The Sandiganbayan issued an Order expressing its view on the matter, to
wit:
The Court has gone through extended inquiry and a narration of the above events
because this case has been ready for trial for over a year and much of the delay
hereon has been due to the inability of the government to produce on scheduled
dates for pre-trial and for trial documents and witnesses, allegedly upon the failure
of the military to supply them for the preparation of the presentation of evidence
thereon. Of equal interest is the fact that this Court has been held to task in public
about its alleged failure to move cases such as this one beyond the preliminary
stage, when, in view of the developments such as those of today, this Court is now
faced with a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate action could have
been undertaken by the plaintiff Republic.[35]
On 9 October 1989, the PCGG manifested in court that it was conducting a
preliminary investigation on the unexplained wealth of private respondents as
mandated by RA No. 1379.[36]The PCGG prayed for an additional four months to
conduct the preliminary investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March 1990. However, on the
scheduled date, petitioner failed to inform the court of the result of the preliminary
investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave
petitioner until 18 May 1990 to continue with the presentation of its evidence and
to inform the court of what lies ahead insofar as the status of the case is concerned
x x x.[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11
July 1990, petitioner filed its Re-Amended Complaint.[38] The Sandiganbayan
correctly observed that a case already pending for years would revert to its
preliminary stage if the court were to accept the Re-Amended Complaint.

Based on these circumstances, obviously petitioner has only itself to blame
for failure to complete the presentation of its evidence. The Sandiganbayan gave
petitioner more than sufficient time to finish the presentation of its evidence. The
Sandiganbayan overlooked petitioners delays and yet petitioner ended the long-
string of delays with the filing of a Re-Amended Complaint, which would only
prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted
the Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to
investigate and prosecute the case against private respondents. This alone would
have been sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case
against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case
before completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties
confiscated from Dimaanos house as illegally seized and therefore inadmissible in
evidence. This issue bears a significant effect on petitioners case since these
properties comprise most of petitioners evidence against private respondents.
Petitioner will not have much evidence to support its case against private
respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos
residence a search warrant captioned Illegal Possession of Firearms and
Ammunition. Dimaano was not present during the raid but Dimaanos cousins
witnessed the raid. The raiding team seized the items detailed in the seizure receipt
together with other items not included in the search warrant. The raiding team
seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash consisting
of P2,870,000 and US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the
successful EDSA revolution.[39]Petitioner argues that a revolutionary government
was operative at that time by virtue of Proclamation No. 1 announcing that
President Aquino and Vice President Laurel were taking power in the name and by
the will of the Filipino people.[40] Petitioner asserts that the revolutionary
8
government effectively withheld the operation of the 1973 Constitution which
guaranteed private respondents exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal
search applies only beginning 2 February 1987, the date of ratification of the 1987
Constitution. Petitioner contends that all rights under the Bill of Rights had already
reverted to its embryonic stage at the time of the search. Therefore, the
government may confiscate the monies and items taken from Dimaano and use the
same in evidence against her since at the time of their seizure, private respondents
did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated
in President Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA
Revolution was done in defiance of the provisions of the 1973 Constitution.[41] The
resulting government was indisputably a revolutionary government bound by no
constitution or legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed under
international law.
The correct issues are: (1) whether the revolutionary government was bound
by the Bill of Rights of the 1973 Constitution during the interregnum, that
is, after the actual and effective take-over of power by the revolutionary
government following the cessation of resistance by loyalist forces up to 24 March
1986 (immediately before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the International Covenant
on Civil and Political Rights (Covenant) and the Universal Declaration of Human
Rights (Declaration) remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative
during the interregnum. However, we rule that the protection accorded to
individuals under the Covenant and the Declaration remained in effect during the
interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the extent and
scope of such directives and orders. With the abrogation of the 1973 Constitution
by the successful revolution, there was no municipal law higher than the directives
and orders of the revolutionary government. Thus, during the interregnum, a
person could not invoke any exclusionary right under a Bill of Rights because there
was neither a constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno:[42]

A revolution has been defined as the complete overthrow of the established
government in any country or state by those who were previously subject to it or
as a sudden, radical and fundamental change in the government or political system,
usually effected with violence or at least some acts of violence. In Kelsen's book,
General Theory of Law and State, it is defined as that which occurs whenever the
legal order of a community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself.
It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution also saw the
unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect
radical reforms in their system of government or institutions by force or a general
uprising when the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable. It has been said that
the locus of positive law-making power lies with the people of the state and from
there is derived the right of the people to abolish, to reform and to alter any
existing form of government without regard to the existing constitution.
It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of
the 1973 Constitution as a Batasang Pambansa resolution had earlier declared
Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said
that the organization of Mrs. Aquinos Government which was met by little
resistance and her control of the state evidenced by the appointment of the
Cabinet and other key officers of the administration, the departure of the Marcos
Cabinet officials, revamp of the Judiciary and the Military signaled the point where
the legal system then in effect, had ceased to be obeyed by the Filipino. (Emphasis
supplied)
To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration orders issued
by the Philippine Commission on Good Government (PCGG) before the adoption of
the Freedom Constitution. The sequestration orders, which direct the freezing and
even the take-over of private property by mere executive issuance without judicial
action, would violate the due process and search and seizure clauses of the Bill of
Rights.
9
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly question
the sequestration orders as violative of the Bill of Rights because there was no Bill
of Rights during the interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the sequestration orders as
contrary to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on
Good Government,[43] petitioner Baseco, while conceding there was no Bill of
Rights during the interregnum, questioned the continued validity of the
sequestration orders upon adoption of the Freedom Constitution in view of the due
process clause in its Bill of Rights. The Court ruled that the Freedom Constitution,
and later the 1987 Constitution, expressly recognized the validity of sequestration
orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG
to issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the power and duty
of the President to enact measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also already adverted to,
Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies the authority
to issue sequestration or freeze orders under Proclamation No. 3 dated March 25,
1986.
The framers of both the Freedom Constitution and the 1987 Constitution
were fully aware that the sequestration orders would clash with the Bill of
Rights. Thus, the framers of both constitutions had to include specific language
recognizing the validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the Constitutional
Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the
arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the
Gregorio Araneta University Foundation, of which all of us have been
given a copy. On the one hand, he argues that everything the
Commission is doing is traditionally legal. This is repeated by

Commissioner Romulo also. Minister Salonga spends a major portion of
his lecture developing that argument. On the other hand, almost as an
afterthought, he says that in the end what matters are the results and
not the legal niceties, thus suggesting that the PCGG should be allowed
to make some legal shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection?
The answer is clear. What they are doing will not stand the test of
ordinary due process, hence they are asking for protection, for
exceptions. Grandes malos, grandes remedios, fine, as the saying
stands, but let us not say grandes malos, grande y malos remedios.
That is not an allowable extrapolation. Hence, we should not give the
exceptions asked for, and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the
CONCOM is to hasten constitutional normalization. Very much at the
heart of the constitutional normalization is the full effectivity of the Bill
of Rights. We cannot, in one breath, ask for constitutional
normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be
hypocritical; that would be a repetition of Marcosian protestation of
due process and rule of law. The New Society word for that is
backsliding. It is tragic when we begin to backslide even before we get
there.
Second, this is really a corollary of the first. Habits tend to become
ingrained. The committee report asks for extraordinary exceptions
from the Bill of Rights for six months after the convening of Congress,
and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become
vice. What the committee report is asking for is that we should allow
the new government to acquire the vice of disregarding the Bill of
Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested right to
its practice, and they will fight tooth and nail to keep the franchise.
That would be an unhealthy way of consolidating the gains of a
democratic revolution.
10
Third, the argument that what matters are the results and not the legal
niceties is an argument that is very disturbing. When it comes from a
staunch Christian like Commissioner Salonga, a Minister, and repeated
verbatim by another staunch Christian like Commissioner Tingson, it
becomes doubly disturbing and even discombobulating. The argument
makes the PCGG an auctioneer, placing the Bill of Rights on the auction
block. If the price is right, the search and seizure clause will be sold.
Open your Swiss bank account to us and we will award you the search
and seizure clause. You can keep it in your private safe.
Alternatively, the argument looks on the present government as
hostage to the hoarders of hidden wealth. The hoarders will release the
hidden health if the ransom price is paid and the ransom price is the Bill
of Rights, specifically the due process in the search and seizure clauses.
So, there is something positively revolving about either argument. The
Bill of Rights is not for sale to the highest bidder nor can it be used to
ransom captive dollars. This nation will survive and grow strong, only if
it would become convinced of the values enshrined in the Constitution
of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee report and
allow the new Constitution to take effect in full vigor. If Section 8 is
deleted, the PCGG has two options. First, it can pursue the Salonga and
the Romulo argument that what the PCGG has been doing has been
completely within the pale of the law. If sustained, the PCGG can go on
and should be able to go on, even without the support of Section 8. If
not sustained, however, the PCGG has only one honorable option, it
must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians.
Let me conclude with what another Christian replied when asked to toy
around with the law. From his prison cell, Thomas More said, "I'll give
the devil benefit of law for my nations safety sake. I ask the
Commission to give the devil benefit of law for our nations sake. And
we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment
excepting sequestration orders from the Bill of Rights, the Constitutional

Commission still adopted the amendment as Section 26,[44] Article XVIII of the 1987
Constitution. The framers of the Constitution were fully aware that absent Section
26, sequestration orders would not stand the test of due process under the Bill of
Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force
during the interregnum, absent a constitutional provision excepting sequestration
orders from such Bill of Rights, would clearly render all sequestration orders void
during the interregnum. Nevertheless, even during the interregnum the Filipino
people continued to enjoy, under the Covenant and the Declaration, almost the
same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de
jure government, assumed responsibility for the States good faith compliance with
the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant
requires each signatory State to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights[45] recognized in the present
Covenant. Under Article 17(1) of the Covenant, the revolutionary government had
the duty to insure that [n]o one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its
Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Although the
signatories to the Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as part of the
generally accepted principles of international law and binding on the State.[46] Thus,
the revolutionary government was also obligated under international law to
observe the rights[47] of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Whether the revolutionary government could
have repudiated all its obligations under the Covenant or the Declaration is another
matter and is not the issue here. Suffice it to say that the Court considers the
Declaration as part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant
or the Declaration in the same way it repudiated the 1973 Constitution. As the de
jure government, the revolutionary government could not escape responsibility for
the States good faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March
1986 that the directives and orders of the revolutionary government became
subject to a higher municipal law that, if contravened, rendered such directives and
orders void. The Provisional Constitution adopted verbatim the Bill of Rights of the
11
1973 Constitution.[48] The Provisional Constitution served as a self-limitation by the
revolutionary government to avoid abuses of the absolute powers entrusted to it
by the people.
During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long as these
officers did not exceed the authority granted them by the revolutionary
government. The directives and orders should not have also violated the Covenant
or the Declaration. In this case, the revolutionary government presumptively
sanctioned the warrant since the revolutionary government did not repudiate
it. The warrant, issued by a judge upon proper application, specified the items to
be searched and seized. The warrant is thus valid with respect to the items
specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the
warrant. As admitted by petitioners witnesses, the raiding team confiscated items
not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize only for
weapons. What else, aside from the weapons, were seized from the house of
Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US
dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the
house of Elizabeth Dimaano. Do you know the reason why your team also
seized other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed
that the reason why they also brought the other items not included in the
search warrant was because the money and other jewelries were contained
in attach cases and cartons with markings Sony Trinitron, and I think three (3)
vaults or steel safes. Believing that the attach cases and the steel safes were
containing firearms, they forced open these containers only to find out that
they contained money.
Q. You said you found money instead of weapons, do you know the reason
why your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting him
decided to bring along also the money because at that time it was already

dark and they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor.[49]
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with this case
was applied before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure
of five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.
AJ AMORES
Q. Before you applied for a search warrant, did you conduct surveillance in
the house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU
elements, your Honor.
Q. And this party believed there were weapons deposited in the house of
Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any
other properties or contraband which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not
include that in the application for search warrant considering that we have
not established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe
that only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]
Q. You stated that a .45 caliber pistol was seized along with one armalite rifle
M-16 and how many ammunition?
12
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with
the fiscals office who charged Elizabeth Dimaano for Illegal Possession of
Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search
warrant, like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to
bring along also the jewelries and other items, sir. I do not really know where
it was taken but they brought along also these articles. I do not really know
their reason for bringing the same, but I just learned that these were taken
because they might get lost if they will just leave this behind.
Q. How about the money seized by your raiding team, they were not also
included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were
suspected to be containing pistols or other high powered firearms, but in the
course of the search the contents turned out to be money. So the team
leader also decided to take this considering that they believed that if they will
just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by
your raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were
opened.[51]
It is obvious from the testimony of Captain Sebastian that the warrant did not
include the monies, communications equipment, jewelry and land titles that the
raiding team confiscated.The search warrant did not particularly describe these
items and the raiding team confiscated them on its own authority. The raiding
team had no legal basis to seize these items without showing that these items

could be the subject of warrantless search and seizure.[52] Clearly, the raiding team
exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are
contraband per se,[53] and they are not, they must be returned to the person from
whom the raiding seized them. However, we do not declare that such person is the
lawful owner of these items, merely that the search and seizure warrant could not
be used as basis to seize and withhold these items from the possessor. We thus
hold that these items should be returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in
Civil Case No. 0037, remanding the records of this case to the Ombudsman for such
appropriate action as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano, are AFFIRMED.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN, MAJOR -GENERAL JOSEPHUS
Q. RAMAS AND ELIZABETH DIMAANO
407 SCRA 10 July 21, 2003
Petitioner: RP Respondent: Sandiganbayan, et al. Ponente: J. Carpio
Nature of Action: Petition for review on certiorari
FACTS:
The PCGG (Presidential Commission on Good Government) created an AFP Anti-
Graft Board tasked to scrutinize the reports of unexplained wealth and corrupt
practices by any AFP personnel (active or retired). The AFP Board investigated
various reports of alleged “ill-gotten” wealth of respondent Maj. Gen. Josephus
Ramas. Along with this, the Constabulary raiding team served a search and seizure
warrant on the premises of Ramas’ alleged mistress, Elizabeth Dimaano. The Board
then concluded that Ramas be prosecuted for violating the “Anti-Graft and Corrupt
Practices Act (RA 3019)” and “Forfeiture of unlawfully Acquired Property (RA
1379)”. Thereafter, they filed a petition for forfeiture against him before the
Sandiganbayan. The Sandiganbayan dismissed the case on several grounds one of
which is that there was an illegal search and seizure of the items confiscated.
13
ISSUES:
1. Whether or not the PCGG has the authority to investigate Ramas and Dimaano
2. Whether or not the properties and other belongings confiscated in Dimaano’s
house were illegally seized which will consequently make it inadmissible
HELD:
The petition was dismissed. Even in the absence of a Constitution, the right against
unlawful seizure can be found in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights. Nevertheless, even during the
interregnum, the Filipino people under the Covenant and Declaration continued to
enjoy almost the same rights found in the Bill of Rights of the 1973 Constitution.
As stated in Article 2(1) of the Convenant, the State is required “to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant.” Further, under Article 17(1) of the Covenant,
the revolutionary government had the duty to insure that “[n]o one else shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence.” The Declaration also provides in its Article 17(2) that “[n]o one
shall be arbitrarily deprived of his property.”
The Court has taken into consideration the Declaration as part of the generally
accepted principles of international law and binding on the State. Hence, the
revolutionary government was also obligated under international law to observe
the rights of individuals under the Declaration, because it didn’t repudiated either
the Covenant or the Declaration during the interregnum.
Footnotes: (1) REPUBLIC ACT No. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES
ACT) Section 1. Statement of policy. It is the policy of the Philippine Government, in
line with the principle that a public office is a public trust, to repress certain acts of
public officers and private persons alike which constitute graft or corrupt practices
or which may lead thereto. (2) REPUBLIC ACT No. 1379 (AN ACT DECLARING
FORFEITURE IN FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN
UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR EMPLOYEE AND PROVIDING
FOR THE PROCEEDINGS THEREFORE.) Section 1. Definitions. (a) For the purposes of
this Act, a "public officer or employee" means any person holding any public office
 14

or employment by virtue of an appointment, election or contract, and any person

holding any office or employment, by appointment or contract, in any State owned
or controlled corporation or enterprise. (3) E.O. # 14 Sec. 3. The civil suits to
recover unlawfully acquired property under Republic Act No. 1379 or for
restitution, reparation of damages, or indemnification for consequential and other
damages or any other civil actions under the Civil Code or other existing laws filed
with the Sandiganbayan against Ferdinand E. Marcos, Imelda R. Marcos, members
of their immediate family, close relatives, subordinates, close and/or business
associates, dummies, agents and nominees, may proceed independently of any
criminal proceedings and may be proved by a preponderance of evidence (4) Art.
2(1) of the Covenant – “to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant.” (5) Art. 17(1) of the Declaration –“ to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the right recognized in
the present Covenant.”

EN BANC
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos,1 is in oked by petitioner in its
bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which
owns the historic Manila Hotel. Opposing, respondents maintain that the provision
is not self-executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national economy
and patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government under
Proclamation No. 50 dated 8 December 1986, decided to sell through public
bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The
winning bidder, or the eventual "strategic partner," is to provide management
expertise and/or an international marketing/reservation system, and financial
support to strengthen the profitability and performance of the Manila Hotel.2 In a
close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad,
a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set forth below by October
23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
15
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other type of contract specified by the Highest Bidder in its
strategic plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel) are
obtained.3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner
and the execution of the necessary contracts, petitioner in a letter to respondent
GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered
by Renong Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a
manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded
the tender of the matching bid and that the sale of 51% of the MHC may be
hastened by respondent GSIS and consummated with Renong Berhad, petitioner
came to this Court on prohibition and mandamus. On 18 October 1995 the Court
issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it
was referred to it by the First Division. The case was then set for oral arguments

with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J.,
as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the Filipino
nation and has practically become a historical monument which reflects the
vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence
and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.6 Petitioner
also argues that since 51% of the shares of the MHC carries with it the ownership
of the business of the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of respondent GSIS being a
part of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is clearly
covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the
1987 Constitution is merely a statement of principle and policy since it is not a self-
executing provision and requires implementing legislation(s) . . . Thus, for the said
provision to Operate, there must be existing laws "to lay down conditions under
which business may be done."9
Second, granting that this provision is self-executing, Manila Hotel does not fall
under the term national patrimony which only refers to lands of the public domain,
waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth
in its territorial sea, and exclusive marine zone as cited in the first and second
paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while
petitioner speaks of the guests who have slept in the hotel and the events that
have transpired therein which make the hotel historic, these alone do not make the
hotel fall under the patrimony of the nation. What is more, the mandate of the
16
Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only
51% of the outstanding shares of the corporation, not the hotel building nor the
land upon which the building stands. Certainly, 51% of the equity of the MHC
cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should
have questioned it right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes
place if for any reason, the Highest Bidder cannot be awarded the Block of Shares.
Thus the submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the condition giving
rise to the exercise of the privilege to submit a matching bid had not yet taken
place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail
since respondent GSIS did not exercise its discretion in a capricious, whimsical
manner, and if ever it did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law. Similarly, the petition for mandamus should fail as petitioner has
no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance
and administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. 10 It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which
all private rights must be determined and all public authority
administered. 11 Under the doctrine of constitutional supremacy, if a law or

contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles.
Their provisions command the legislature to enact laws and carry out the purposes
of the framers who merely establish an outline of government providing for the
different departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens. 12 A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in itself and becomes
operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive codes
of laws intended to operate directly upon the people in a manner similar to that of
statutory enactments, and the function of constitutional conventions has evolved
into one more like that of a legislative body. Hence, unless it is expressly provided
that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law.14 This can be cataclysmic. That is why the
prevailing view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing . . . . Unless the contrary is clearly
intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed
implementing statute. 15
17
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
clearly not self-executing, as they quote from discussions on the floor of the 1986
Constitutional Commission —
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of "PREFERENCE" is given to QUALIFIED
FILIPINOS," can it be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against
whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
"QUALIFIED" because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on the
setting up of other financial structures, et cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting other further laws to
enforce the constitutional provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the legislature without impairing
the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation
to facilitate the exercise of powers directly granted by the constitution, further the
operation of such a provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the
right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not

render such a provision ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be self-
executing. The rule is that a self-executing provision of the constitution does not
necessarily exhaust legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional right and
make it more available. 17 Subsequent legislation however does not necessarily
mean that the subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par.,
of Art. XII is implied from the tenor of the first and third paragraphs of the same
section which undoubtedly are not self-executing. 18 The argument is flawed. If the
first and third paragraphs are not self-executing because Congress is still to enact
measures to encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to regulate
and exercise authority over foreign investments within its national jurisdiction, as
in the third paragraph, then a fortiori, by the same logic, the second paragraph can
only be self-executing as it does not by its language require any legislation in order
to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions
are merely statements of principles and policies, which are basically not self-
executing and only placed in the Constitution as moral incentives to legislation, not
as judicially enforceable rights — are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-
building 23 the promotion of social justice, 24 and the values of
education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional
provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion
of general welfare, 30 the sanctity of family life, 31 the vital role of the youth in
nation-building 32 and the promotion of total human liberation and
development. 33A reading of these provisions indeed clearly shows that they are
not judicially enforceable constitutional rights but merely guidelines for legislation.
The very terms of the provisions manifest that they are only principles upon which
the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
18
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that — qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists
in certain specified circumstances an action may be maintained to enforce such
right notwithstanding the absence of any legislation on the subject; consequently,
if there is no statute especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi
jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission 34 explains —
The patrimony of the Nation that should be conserved and developed
refers not only to out rich natural resources but also to the cultural
heritage of out race. It also refers to our intelligence in arts, sciences and
letters. Therefore, we should develop not only our lands, forests, mines
and other natural resources but also the mental ability or faculty of our
people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not only
to the natural resources of the Philippines, as the Constitution could have very well
used the term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark — a living testimonial of Philippine heritage.
While it was restrictively an American hotel when it first opened in 1912, it
immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has
since then become the venue of various significant events which have shaped
Philippine history. It was called the Cultural Center of the 1930's. It was the site of
the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries
and official visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The
Heart and Memory of a City. 37During World War II the hotel was converted by the
Japanese Military Administration into a military headquarters. When the American
forces returned to recapture Manila the hotel was selected by the Japanese
 19

together with Intramuros as the two (2) places fro their final stand. Thereafter, in MR. MONSOD. At least 60 percent, Madam President.
the 1950's and 1960's, the hotel became the center of political activities, playing
host to almost every political convention. In 1970 the hotel reopened after a MR. DAVIDE. Is that the intention?
renovation and reaped numerous international recognitions, an acknowledgment
of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d'
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
etat where an aspirant for vice-president was "proclaimed" President of the
preference should only be 100-percent Filipino.
Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila Hotel has become part
of our national economy and patrimony. For sure, 51% of the equity of the MHC
comes within the purview of the constitutional shelter for it comprises the majority
and controlling stock, so that anyone who acquires or owns the 51% will have
actual control and management of the hotel. In this instance, 51% of the MHC
cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that the Filipino First
Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon
which the building stands. 38
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may
refer only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President. 39
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos"
here, as intended by the proponents, will include not only individual Filipinos but
also Filipino-controlled entities or entities fully-controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —

The argument is pure sophistry. The term qualified Filipinos as used in Our
Constitution also includes corporations at least 60% of which is owned by Filipinos.
This is very clear from the proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment.
And the amendment would consist in substituting the words "QUALIFIED
FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS
OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED
BY SUCH CITIZENS.
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we
have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do
we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to
please restate his amendment so that I can ask a question
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is qualified
and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues —
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL — THE
STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-
called "Filipino First" policy. That means that Filipinos should be given preference in
the grant of concessions, privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding
the subject provision was still further clarified by Commissioner Nolledo 43 —
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy . . .
This provision was never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given
to those citizens who can make a viable contribution to the common
good, because of credible competence and efficiency. It certainly does
NOT mandate the pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or inefficient, since such
an indiscriminate preference would be counter productive and inimical to
the common good.
In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a "qualified foreigner" end a "qualified
Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified
by respondent GSIS in accordance with its own guidelines so that the sole inference
here is that petitioner has been found to be possessed of proven management
expertise in the hotel industry, or it has significant equity ownership in another
hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing
legislation is quite disturbing. The attempt to violate a clear constitutional provision
20
— by the government itself — is only too distressing. To adopt such a line of
reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need
implementing legislation have juridical life of their own and can be the source of a
judicial remedy. We cannot simply afford the government a defense that arises out
of the failure to enact further enabling, implementing or guiding legislation. In fine,
the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt —
The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts — provided that
there are discoverable legal standards for executive action. When the
executive acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The responsibility for
reading and understanding the Constitution and the laws is not the sole
prerogative of Congress. If it were, the executive would have to ask
Congress, or perhaps the Court, for an interpretation every time the
executive is confronted by a constitutional command. That is not how
constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct
personality. This argument again is at best specious. It is undisputed that the sale of
51% of the MHC could only be carried out with the prior approval of the State
acting through respondent Committee on Privatization. As correctly pointed out by
Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the
acts of persons distinct from the government are considered "state action" covered
by the Constitution (1) when the activity it engages in is a "public function;" (2)
when the government is so significantly involved with the private actor as to make
the government responsible for his action; and, (3) when the government has
approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third
categories of "state action." Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a transaction of the State and therefore
subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also
to the government as elements of the State. After all, government is composed of
three (3) divisions of power — legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the
three(3) branches of government. It is undeniable that in this case the subject

constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the
State.
It should be stressed that while the Malaysian firm offered the higher bid it is not
yet the winning bidder. The bidding rules expressly provide that the highest bidder
shall only be declared the winning bidder after it has negotiated and executed the
necessary contracts, and secured the requisite approvals. Since the "Filipino First
Policy provision of the Constitution bestows preference on qualified Filipinos the
mere tending of the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest bidder.
For in choosing the awardee respondents are mandated to abide by the dictates of
the 1987 Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and contracts
must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award
the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of a
stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent
21
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the
basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood
to be always open to public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign jurisdiction. Any person
therefore desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the
sale to Renong Berhad since petitioner was well aware from the beginning that a
foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and
foreigners alike were invited to the bidding. But foreigners may be awarded the
sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest
bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus
it did not have the right or personality then to compel respondent GSIS to accept
its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the
apparent disregard by respondent GSIS of petitioner's matching bid did the latter
have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to
foreigners when there is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as

provided in the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the
1987 Constitution not merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court as the ultimate
guardian of the Constitution will never shun, under any reasonable circumstance,
the duty of upholding the majesty of the Constitution which it is tasked to defend.
It is worth emphasizing that it is not the intention of this Court to impede and
diminish, much less undermine, the influx of foreign investments. Far from it, the
Court encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is ordained by the
Constitution. The position of the Court on this matter could have not been more
appropriately articulated by Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about
the wisdom and feasibility of legislation economic in nature, the Supreme
Court has not been spared criticism for decisions perceived as obstacles
to economic progress and development . . . in connection with a
temporary injunction issued by the Court's First Division against the sale
of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that injunction
"again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while it is no business of
the Court to intervene in contracts of the kind referred to or set itself up
as the judge of whether they are viable or attainable, it is its bounden
duty to make sure that they do not violate the Constitution or the laws,
or are not adopted or implemented with grave abuse of discretion
amounting to lack or excess of jurisdiction. It will never shirk that duty,
no matter how buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary,
objective should not be pursued at the expense of national pride and dignity. For
the Constitution enshrines higher and nobler non-material values. Indeed, the
Court will always defer to the Constitution in the proper governance of a free
22
society; after all, there is nothing so sacrosanct in any economic policy as to draw
itself beyond judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic
and republican state, with sovereignty residing in the Filipino people and from
whom all government authority emanates. In nationalism, the happiness and
welfare of the people must be the goal. The nation-state can have no higher
purpose. Any interpretation of any constitutional provision must adhere to such
basic concept. Protection of foreign investments, while laudible, is merely a policy.
It cannot override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to
be sold to the highest bidder solely for the sake of privatization. We are not talking
about an ordinary piece of property in a commercial district. We are talking about a
historic relic that has hosted many of the most important events in the short
history of the Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their official visits to the Philippines.
Thus the Manila Hotel has played and continues to play a significant role as an
authentic repository of twentieth century Philippine history and culture. In this
sense, it has become truly a reflection of the Filipino soul — a place with a history
of grandeur; a most historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark — this Grand Old Dame of hotels in Asia
— to a total stranger. For, indeed, the conveyance of this epic exponent of the
Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nation's soul for some pieces
of foreign silver. And so we ask: What advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that
it stands for — is sold to a non-Filipino? How much of national pride will vanish if
the nation's cultural heritage is entrusted to a foreign entity? On the other hand,
how much dignity will be preserved and realized if the national patrimony is
safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the
plain and simple meaning of the Filipino First Policy provision of the Philippine
Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue to
respect and protect the sanctity of the Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and
to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00
per share and thereafter to execute the necessary clearances and to do such other
acts and deeds as may be necessary for purpose.
SO ORDERED.
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
G.R. NO. 122156. February 3, 1997
FACTS:
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government,
decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent Manila Hotel Corporation (MHC). The winning bidder, or the
eventual “strategic partner,” will provide management expertise or an
international marketing/reservation system, and financial support to strengthen
the profitability and performance of the Manila Hotel.
In a close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and RenongBerhad,
a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Prior to the declaration of RenongBerhard as the winning bidder, petitioner Manila
Prince Hotel matched the bid price and sent a manager’s check as bid security,
which GSIS refused to accept.
23
Apprehensive that GSIS has disregarded the tender of the matching bid and that
the sale may be consummated with RenongBerhad, petitioner filed a petition
before the Court.
ISSUES:
Whether or not Sec. 10, second par., Art. XII, of the 1987 Constitution is a self-
executing provision.
Whether or not the Manila Hotel forms part of the national patrimony.
Whether or not the submission of matching bid is premature
Whether or not there was grave abuse of discretion on the part of the respondents
in refusing the matching bid of the petitioner.
RULINGS:
In the resolution of the case, the Court held that:
It is a self-executing provision.
Since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract. A provision which lays
down a general principle, such as those found in Art. II of the 1987 Constitution, is
usually not self-executing. But a provision which is complete in itself and becomes
operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing.
A constitutional provision is self-executing if the nature and extent of the right
conferred and the liability imposed are fixed by the constitution itself, so that they
can be determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action. Unless
it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law.

10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially enforceable.
When our Constitution mandates that in the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that – qualified Filipinos shall be
preferred. And when our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if
there is no statute especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi
jus ibiremedium.
The Court agree.
In its plain and ordinary meaning, the term patrimony pertains to heritage. When
the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos.
It also refers to Filipino’s intelligence in arts, sciences and letters. In the present
case, Manila Hotel has become a landmark, a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in 1912,
a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history.
Verily, Manila Hotel has become part of our national economy and patrimony. For
sure, 51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone who
acquires or owns the 51% will have actual control and management of the hotel. In
this instance, 51% of the MHC cannot be disassociated from the hotel and the land
on which the hotel edifice stands.
It is not premature.
24
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if the Court is to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the
basic law.
The Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood
to be always open to public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign jurisdiction. Any person
therefore desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
There was grave abuse of discretion.
To insist on selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that government be treated
as any other ordinary market player, and bound by its mistakes or gross errors of
judgement, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus, the Court would rather
remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the
basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by RenongBerhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.

Hence, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the
shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the
subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and
thereafter to execute the necessary agreements and documents to effect the sale,
to issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.
HELD:
A provision which lays down a general principle, such as those found in Article II of
the 1987 Constitution, is usually not self-executing. But a provision which is
complete in itself and becomes operative without the aid of supplementary or
enabling legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be determined
by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. In self-executing
constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the determination
thereof, or place reasonable safeguards around the exercise of the right. The mere
fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is
not necessarily an indication that it was not intended to be self-executing. The rule
is that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable. As against constitutions
of the past, modern constitutions have been generally drafted upon a different
25
principle and have often become in effect extensive codes of laws intended to
operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one
more like that of a legislative body. Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of
the fundamental law. In fine, Section 10, second paragraph, Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to
put it in operation.
In its plain and ordinary meaning, the term patrimony pertains to heritage. When
the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos. It also refers to
Filipino’s intelligence in arts, sciences and letters. In the present case, Manila Hotel
has become a landmark, a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, a concourse for the
elite, it has since then become the venue of various significant events which have
shaped Philippine history. In the granting of economic rights, privileges, and
concessions, especially on matters involving national patrimony, when a choice has
to be made between a “qualified foreigner” and a “qualified Filipino,” the latter
shall be chosen over the former.
The Supreme Court directed the GSIS, the Manila Hotel Corporation, the
Committee on Privatization and the Office of the Government Corporate Counsel
to cease and desist from selling 51% of the Share of the MHC to RenongBerhad,
and to accept the matching bid of Manila Prince Hotel at P44 per shere and
thereafter execute the necessary agreements and document to effect the sale, to
issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.

EN BANC
April 18, 2017
G.R. No. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF MANILA,
NATIONAL COMMISSION FOR CULTURE AND THE ARTS, NATIONAL HISTORICAL
COMMISSION OF THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a cross over it.
My name, the date of my birth, and of my death. Nothing more.
If you later wish to surround my grave with a fence, you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with Applications for Temporary
Restraining Order, Writ of Preliminary Injunction, and Others 1 filed by the Knights
of Rizal (KOR) seeking, among others, for an order to stop the construction of
respondent DMCI Homes, Inc. 's condominium development project known as the
Torre de Manila. In its Resolution dated 25 November 2014, the Court resolved to
treat the petition as one for mandamus. 2
The Facts
On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired a
7,716.60-square meter lot in the City of Manila, located near Taft Avenue, Ermita,
beside the former Manila Jai-Alai Building and Adamson University.4The lot was
earmarked for the construction of DMCI-PDI's Torre de Manila condominium
project.
26
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the construction
of its project. It then obtained a Zoning Permit from the City of Manila's City
Planning and Development Office (CPDO) on 19 June 2012.5
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted
DMCI-PDI a Building Permit, allowing it to build a "Forty Nine (49) Storey w/
Basement & 2 penthouse Level Res'l./Condominium" on the property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining the
Office of the Building Official to temporarily suspend the Building Permit of DMCI-
PDI, citing among others, that "the Torre de Manila Condominium, based on their
development plans, upon completion, will rise up high above the back of the
national monument, to clearly dwarf the statue of our hero, and with such
towering heights, would certainly ruin the line of sight of the Rizal Shrine from the
frontal Roxas Boulevard vantage point[.]"7
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's
City Legal Officer on whether he is bound to comply with Resolution No. 121.8 In his
letter dated 12 September 2012, City Legal Officer Renato G. Dela Cruz stated that
there is "no legal justification for the temporary suspension of the Building Permit
issued in favor of [DMCI-PDI]" since the construction "lies outside the Luneta Park"
and is "simply too far to I be a repulsive distraction or have an objectionable effect
on the artistic and historical significance" of the Rizal Monument. 9 He also pointed
out that "there is no showing that the [area of subject property has been officially
declared as an anthropological or archeological area. Neither has it ' been
categorically designated by the National Historical Institute as a heritage zone, a
cultural property, a historical landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion or the
National Historical Commission of the Philippines (NHCP) on the matter. In the
letter10 dated 6 November 2012 from NHCP I Chairperson Dr. Maria Serena I.
Diokno addressed to DMCI-PDI and the letter 11 dated 7 November 2012 from
NHCP Executive Director III Ludovico D. Bado)f addressed to then Manila Mayor
Alfredo S. Lim, the NHCP maintained that the Torre de Manila project site is outside
the boundaries of the Rizal f.ark and well to the rear of the Rizal Monument, and
thus, cannot possibly obstruct the frontal view of the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila
project that garnered about 7,800 signatures, the City Council of Manila issued
Resolution No. 146, reiterating its directive in Resolution No. 121 1 enjoining the

City of Manila's building officials to temporarily suspend ~MCI-PDI's Building
Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PIDI
President Alfredo R. Austria sought clarification on the controversy surrounding its
Zoning Permit. He stated that since the CPDO granted its Zoning Permit, DMCI-PDI
continued with the application for the Building Permit, which was granted, and did
not deem it necessary to go through the process of appealing to the local zoning
board. He then expressed DMCI-PDI's willingness to comply with the process if the
City of Manila deemed it necessary. 13
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals
(MZBAA) issued Zoning Board Resolution No. 06, Series of 2013, 14 recommending
the approval of DMCI-PDI's application for variance. ;The MZBAA noted that the
Torre de Manila project "exceeds the prescribed maximum Percentage of Land
Occupancy (PLO) and exceeds the prescribeµ Floor Area Ratio (FAR) as stipulated in
Article V, Section 17 of City Ordinance No. 8119[.]" However, the MZBAA still
recommended the approval of the variance subject to the five conditions set under
the same resolution.
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board
Resolution No. 06-A, Series of 2013, 15 on 8 January 2014, amending condition (c) in
the earlier resolution. 16
On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of
2014, 17 adopting Zoning Board Resolution Nos. 06 and 06- A. The City Council
resolution states that "the City Council of Manila find[ s] no cogent reason to deny
and/or reverse the aforesaid recommendation of the [MZBAA] and hereby ratif[ies]
and confirm[s] all previously issued permits, licenses and approvals issued by the
City [Council] of Manila for Torre de Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan, non-
sectarian and non-profit organization" 18 created under Republic Act No.
646, 19 filed a Petition for Injunction seeking a temporary restraining I order, and
later a permanent injunction, against the construction of DMCIPDI's Torre de
Manila condominium project. The KOR argues that the subject matter of the
present suit is one of "transcendental importance, paramount public interest, of
27
overarching significance to society, or with far-reaching implication" involving the
desecration of the Rizal Monument.
The KOR asserts that the completed Torre de Manila structure will "[stick] out like a
sore thumb, [dwarf] all surrounding buildings within a radius of two kilometer/s"
and "forever ruin the sightline of the Rizal Monument in Luneta Park: Torre de
Manila building would loom at the back I and overshadow the entire monument,
whether up close or viewed from a distance. ''20
Further, the KOR argues that the Rizal Monument, as a National Treasure, is
entitled to "full protection of the law"21and the national government must abate
the act or activity that endangers the nation's cultural heritage "even against the
wishes of the local government hosting it." 22
Next, the KOR contends that the project is a nuisance per se23 because "[t]he
despoliation of the sight view of the Rizal Monument is a situation that annoy's or
offends the senses' of every Filipino who honors the memory of the National Hero
Jose Rizal. It is a present, continuing, worsening and aggravating status or
condition. Hence, the PROJECT is a nuisance per se. It deserves I to be abated
summarily, even without need of judicial proceeding. "24
The KOR also claims that the Torre de Manila project violates the NHCP's Guidelines
on Monuments Honoring National Heroes, Illustrious Filipinos and Other
Personages, which state that historic monuments should assert a visual
"dominance" over its surroundings,25 as well as the country's commitment under
the International Charter for the Conservation and Restoration of Monuments and
Sites, otherwise known as the Venice Charter. 26
Lastly, the KOR claims that the DMCI-PDI's construction was commenced and
continues in bad faith, and is in violation of the City of Manila's zoning ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's petition should be dismissed on
the following grounds:
I.
THXS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.

II.
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PR0SECUTE THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND
V.
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORPER AND/OR A WRIT OF
PRELIMINARY INJUNCTION. 28
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
injunction.29 Even assuming that the Court has concurrent jurisdiction, DMCI-PDI
maintains that the petition should still have been filed with the Regional Trial Court
under the doctrine of hierarchy of courts and because the petition involves
questions of fact. 30
DMCI-PDI also contends that the KOR's petition is in actuality an opposition' or
appeal from the exemption granted by the City of Manila's MZBAA, a matter which
is also not within the jurisdiction of the Court. 31 DMCI-PDI claims that the proper
forum should be the MZBAA, and should the KOR fail there, it should appeal the
same to the Housing and Land Use Regulatory Board (HLURB). 32
DMCI-PDI further argues that since the Rizal Monument has been declared a
National Treasure, the power to issue a cease and desist order is lodged with the
"appropriate cultural agency" under Section 25 of Republic Act No. li0066 or
the National Cultural Heritage Act of 2009. 33 Moreover, DMCI-PDI asserts that the
KOR availed of the wrong remedy since an action for injunction is not the proper
remedy for abatement of a nuisance. 34
Second, DMCI-PDI maintains that the KOR has no standing to institute this
proceeding because it is not a real party in interest in this case. The purposes of the
KOR as a public corporation do not include the preservation of the Rizal Monument
28
as a cultural or historical heritage site.35 The KOR has also not shown that it
suffered an actual or threatened injury as a result of the alleged illegal conduct of
the City of Manila. If there is any injury to the KOR at all, the same was caused by
the private conduct of a private entity and not the City of Manila. 36
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-PDI
reiterates that it obtained all the necessary permits, licenses, clearances, and
certificates for its construction. 37 It also refutes the KOR's claim that the Torre de
Manila would dwarf all other structures around it; considering that there are other
tall buildings even closer to the Rizal Monument itself, namely, the Eton Baypark
Tower at the corner of Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235
meters from the Rizal Monument) and Sunview Palace at the corner of M.H. Del
Pilar and T.M. Kalaw Streets (42 storeys; 250 meters from the Rizal Monument). 38
Fourth, DMCI-PDI next argues that it did not act in bad faith when it started
construction of its Torre de Manila project. Bad faith cannot be attributed to it
since it was within the "lawful exercise of [its] rights." 39 The KOR failed to present
any proof that DMCI-PDI did not follow the proper procedure and zoning
restrictions of the City of Manila. Aside from obtaining all the necessary permits
from the appropriate government agencies,40 DMCI-PDI also sought clarification on
its right to build on its site from the Office of the City Legal Officer of Manila, the
Manila CPDO, and the NHCP.41 Moreover, even if the KOR proffered such proof, the
Court would be 1 in no position to declare DMCI-PDI's acts as illegal since the Court
is not a trier of facts. 42
Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining Order
(TRO) and writ of preliminary injunction. DMCI-PDI asserts that the KOR has failed
to establish "a clear and unmistakable right to enjoin I the construction of Torre de
Manila, much less request its demolitior."43 DMCI-PDI further argues that it "has
complied with all the legal requirements for the construction of Torre de Manila x x
x [and] has violated o right of KOR that must be protected. Further, KOR stands to
suffer o damage because of its lack of direct pecuniary interest in this petiti1 on. To
grant the KOR's application for injunctive relief would constitute an unjust taking of
property without due process of law. "44
Arguments of the City of Manila
In its Comment, the City of Manila argues that the writ of mandamus cannot issue
"considering that no property or substantive rights whatsoever in favor of [the
KOR] is being affected or x x x entitled to judicial protection[.]"45

The City of Manila also asserts that the "issuance and revocation of a Building
Permit undoubtedly fall under the category of a discretionary act or duty
performed by the proper officer in light of his meticulous appraisal and evaluation
of the pertinent supporting documents of the application in accordance with the
rules laid out under the National Building Code [and] Presidential Decree No.
1096,"46 while the remedy of mandamus is available only to compel the
performance of a ministerial duty. 47
Further, the City of Manila maintains that the construction of the Torre de Manila
did not violate any existing law, since the "edifice [is] well behind (some 789 meters
away) the line of sight of the Rizal Monument."48 It adds that the City of Manila's
"prevailing Land Use and Zoning Ordinance [Ordinance No. 8119] x xx allows an
adjustment in Floor Area Ratios thru the [MZBAA] subject to further final approval
of the City Council."49 The City Council adopted the MZBAA's favorable:
recommendation in its Resolution No. 5, ratifying all the licenses and permits
issued to DMCI-PDI for its Torre de Manila project.
In its Position Paper dated 15 July 2015, the City of Manila admitted that the Zoning
Permit issued to DMCI-PDI was "in breach of certain provisions of City Ordinance
No. 8119."50 It maintained, however, 1 that the deficiency is "procedural in nature
and pertains mostly td the failure of [DMCI-PDI] to comply with the stipulations
that allow an excess in the [FAR] provisions." 51 Further, the City of Manila argued
that the MZBAA, when it recommended the allowance of the project's variance,
imposed certain conditions upon the Torre de Manila project in order to mitigate
the possible adverse effects of an excess FAR. 52
The Issue
The issues raised by the parties can be summed up into one main point: Can the
Court issue a writ of mandamus against the officials of the City of Manila to stop
the construction of DMCI-PDI's Torre de Manila project?
The Court's Ruling
The petition for mandamus lacks merit and must be dismissed.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission,53 the Court held
that "what is not expressly or impliedly prohibited by law may be done, except
29
when the act is contrary to morals, customs and I public order." This principle is
fundamental in a democratic society, to protect the weak against the strong, the
minority against the majority, and the individual citizen against the government. In
essence, this principle, which is the foundation of a civilized society under the rule
of law, prescribes that the freedom to act can be curtailed only through law.
Without this principle, the rights, freedoms, and civil liberties of citizens can be
arbitrarily and whimsically trampled upon by the shifting passions of those who can
spout the loudest, or those who can gather the biggest crowd or the most number
of Internet trolls. In other instances,54 the Court has allowed or upheld actions that
were not expressly prohibited by statutes when it determined that these acts were
not contrary to morals, customs, and public order, or that upholding the same
would lead to a more equitable solution to the controversy. However, it is the law
itself - Articles 130655 and 1409(1)56 of the Civil Code - which prescribes that acts
not contrary to morals, good customs, public order, or public policy are allowed if
also not contrary to law.
In this case, there is no allegation or proof that the Torre de Manila project is
"contrary to morals, customs, and public order" or that it brings harm, danger, or
hazard to the community. On the contrary, the City of Manila has determined that
DMCI-PDI complied with the standards set under the pertinent laws and local
ordinances to construct its Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting the
construction of the Torre de Manila due to its effect on the background "view,
vista, sightline, or setting" of the Rizal Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards. - Historic site and
facilities shall be conserved and preserved. These shall, to the extent possible, be
made accessible for the educational and cultural enrichment of the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and
enhance their heritage values.
2. Historic sites and facilities shall be adaptively re-used.

3. Any person who proposes to add, to alter, or partially demolish a designated
heritage property will require the approval of the City Planning and Development
Office (CPDO) and shall be required to prepare a heritage impact statement that
will demonstrate to the satisfaction of CPDO that the proposal will not adversely
impact the heritage significance of the property and shall submit plans for review
by the CPDO in coordination with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties shall be
evaluated based on criteria established by the heritage significance of the
particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a
designated heritage property or properties, the owner shall be required to provide
evidence to satisfaction that demonstrates that rehabilitation and re-use of the
property is not viable.
6. Any designated heritage property which is to be demolished or significantly
altered shall be thoroughly documented for archival purposes with! a history,
photographic records, and measured drawings, in accordance with accepted
heritage recording guidelines, prior to demolition or alteration.
7. Residential and commercial infill in heritage areas will be sensitive to the existing
scale and pattern of those areas, which maintains the existing landscape and
streetscape qualities of those areas, and which does not result in the loss of any
heritage resources.
8. Development plans shall ensure that parking facilities (surface lots residential
garages, stand-alone parking garages and parking components as parts of larger
developments) are compatibly integrated into heritage areas, and/or are
compatible with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to place
metering equipment, transformer boxes, power lines, conduit, equipment boxes,
piping, wireless telecommunication towers and other utility equipment and devices
in locations which do not detract from the visual character of heritage resources,
and which do not have a negative impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration of
the heritage property to ensure that design guidelines and standards are met and
30
shall promote preservation and conservation of the heritage property. (Emphasis
supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only
serve as guides, as it expressly states that "the following shall guide the
:development of historic sites and facilities." A guide simply sets a direction 'or
gives an instruction to be followed by prope1iy owners and developers in order to
conserve and enhance a property's heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The City considers it in the public interest
that all projects are designed and developed in a safe, efficient and aesthetically
pleasing manner. Site development shall consider the environmental character and
limitations of the site and its adjacent properties. All project elements shall be in
complete harmony according to good design principles and the subsequent
development must be visually pleasing as well as efficiently functioning especially
in relation to the adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with1 regard to
safety, efficiency and high standards of design. The natural environmental
character of the site and its adjacent properties shall be considered in the site
development of each building and facility.
2. The height and bulk of buildings and structures shall be so designed that it does
not impair the entry of light and ventilation, cause the loss I of privacy and/or
create nuisances, hazards or inconveniences to adjacent developments.
3. Abutments to adjacent properties shall not be allowed without the neighbor's
prior written consent which shall be required by the City Planning and
Development Office (CPDO) prior to the granting of a Zoning Permit (Locational
Clearance).

4. The capacity of parking areas/lots shall be per the minimum requirements of the
National Building Code. These shall be located, developed and landscaped in order
to enhance the aesthetic quality of the facility. In no case, shall parking areas/lots
encroach into street rights-of-way and shall follow the Traffic Code as set by the
City.
5. Developments that attract a significant volume of public modes of
transportation, such as tricycles, jeepneys, buses, etc., shall provide on-site parking
for the same. These shall also provide vehicular loading and unloading bays so as
street traffic flow will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing I materials
shall be provided to all noise and vibration-producing machinery. Noise levels shall
be maintained according to levels specified in DENR DA9 No. 30 - Abatement of
Noise and Other Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or felt
from any point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental to the
skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and other
regulatory tools that will ensure high quality developments shall be required from
developers of commercial subdivisions and condominiums. These shall be
submitted to the City Planning and Development Office (CPDO) for review and
approval. (Emphasis supplied)
Se9tion 4 7 of Ordinance No. 8119 specifically regulates the "development of
historic sites and facilities."Section 48 regulates "large commercial signage and/or
pylon." There is nothing in Sections 47 and 48 of Ordinance No. 8119 that disallows
the construction of a building outside the boundaries of a historic site or
facility, where such building may affect the1 background of a historic site. In this
case, the Torre de Manila stands 870 meters outside and to the rear of the Rizal
Monument and "cannot possibly obstruct the front view of the [Rizal]
Monument." 57 Likewise, ;the Torre de Manila is not in an area that has been
declared as an "anthropological or archeological area" or in an area designated as a
heritage zone, cultural property, historical landmark, or a national treasure by the
NHCP. 58
31
Section 15, Article XIV of the Constitution, which deals with the subject of arts and
culture, provides that "[t]he State shall conserve, promote and popularize the
nation's historical and cultural heritage and resources x x x." Since this provision is
not self-executory, Congress passed laws dealing with the preservation and
conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or the National Cultural Heritage Act of
2009, which empowers the National Commission for Culture and the Arts and other
cultural agencies to issue a cease and desist order "when the physical integrity of
the national cultural treasures or important cultural properties [is] found to be in
danger of destruction or significant alteration from its original state."60 This law
declares that the State should protect the "physical integrity" of the heritage
property or building if there is "danger of destruction or significant alteration from
its original state." Physical integrity refers to the structure itself - how strong and
sound the structure is. The same law does not mention that another project,
building, or property, not itself a heritage property or building, may be the subject
of a cease and desist order when it adversely affects the background view, vista, or
sightline of a heritage property or building. Thus, Republic Act No. 10066 cannot
apply to the Torre de Manila condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be deprived of life, liberty or
1property without due process of law x x x." 61 It is a fundamental principle that no
property shall be taken away from an individual without due process, whether
substantive or procedural. The dispossession of property, or in this case the
stoppage of the construction of a building in one's own property would violate
substantive due process.
The Rules on Civil Procedure are clear that mandamus only issues when there is a
clear legal duty imposed upon the office or the officer sought to be compelled to
perform an act, and when the party seeking mandamus has a clear legal right to
the performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
ordinance, or rule for that matter, that the construction of a building outside the
Rizal Park is prohibited if the building is within the background sightline or view of
the Rizal Monument. Thus, there is no legal duty on the part of the City of
Manila "to consider," in the words of the Dissenting Opinion, "the standards set
under Ordinance No. 8119" in relation to the applications of DMCI-PDI for the
Torre de Manila since under the ordinance these standards can never be applied

outside the boundaries of Rizal Park. While the Rizal Park has been declared a
National Historical Site, the area where Torre de Manila is being built is a privately-
owned property that is "not pap: of the Rizal Park that has been declared as a
National Heritage Site in 1095," and the Torre de Manila area is in fact "well-
beyond" the Rizal Park, according to NHCP Chairperson Dr. Maria Serena I.
Diokno. 62 Neither has the area of the Torre de Manila been designated as a
"heritage zone, a cultural property, a historical landmark or even a national
treasure."63
Also, to declare that the City of Manila failed to consider the standards under
Ordinance No. 8119 would involve making a finding of fact. A finding lot fact
requires notice, hearing, and the submission of evidence to ascertain compliance
with the law or regulation. In such a case, it is the Regional Trial Court which has
the jurisdiction to hear the case, receive evidence, make a proper finding of fact,
and determine whether the Torre de Manila project properly complied with the
standards set by the ordinance. In Meralco v. Public Service Commission, 64 we held
that it is the cardinal right of a party in trials and administrative proceedings to be
heard, which includes the right of the party interested or affected to present his
own case and submit evidence in support thereof and to have such evidence
presented considered by the proper court or tribunal.
To compel the City of Manila to consider the standards under Ordinance No. 8119
to the Torre de Manila project will be an empty exercise since these standards
cannot apply outside of the Rizal Park - and the Torre de Manila is outside the Rizal
Park. Mandamus will lie only if the officials
The KOR also invokes this Court's exercise of its extraordinary certiorari power of
review under Section 1, Article VIII65 of the Constitution. However, this Court can
only exercise its extraordinary certiorari power if the City of Manila, in issuing the
required permits and licenses, gravely abused its discretion amounting to lack or
excess of jurisdiction. Tellingly, neither the majority nor minority opinion in this
case has found that the City of Manila committed grave abuse of discretion in
issuing the permits and licenses to DMCI-PDI. Thus, there is no justification at all for
this Court to exercise its extraordinary certiorari power.
Moreover, the exercise of this Court's extraordinary certiorari power is limited to
actual cases and controversies that necessarily involve a violation of the
Constitution or the determination of the constitutionality or validity of a
governmental act or issuance. Specific violation of a statute that does not raise the
issue of constitutionality or validity of the statute cannot, as a rule, be the subject
of the Court's direct exercise of its expanded certiorari power. Thus, the KOR's
32
recourse lies with other judicial remedies or proceedings allowed under the Rules
of Court.
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved
Medical Centers Association, Inc., 66we held that in cases where the question of
constitutionality of a governmental action is raised, the judicial power that the
courts exercise is likewise identified as the power of judicial review - the power to
review the constitutionality of the actions of other branches of government. As a
rule, as required by the hierarchy of courts principle, these cases are filed with the
lowest court with jurisdiction over the 1subject matter. The judicial review that the
courts undertake requires:
1) there be an actual case or controversy calling for the exercise of judicial power;
2) the person challenging the act must have "standing" to challenge; he must have
a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement;
3) the question of constitutionality must be raised at the earliest possible
opportunity; and
4) the issue of constitutionality must be the very lismota of the case.
The lower court's decision under the constitutional scheme reaches the Supreme
Court through the appeal process, through a petition for review on certiorari under
Rule 45 of the Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in an
original petition for injunction which we later on treated as one for mandamus
under Rule 65. There is, however, no clear legal duty on the City of Manila to
consider the provisions of Ordinance No. 8119 for applications for permits to
build outside the protected areas of the Rizal Park. Even if there were such legal
duty, the determination of whether the City of .Manila failed to abide by this legal
duty would involve factual matters which have not been admitted or established in
this case. Establishing factual matters is not within the realm of this Court. Findings
of fact are the province of the trial courts.
There is no standard in Ordinance No. 8119 for defining or determining the
background sightline that is supposed to be protected or that is part of the
"physical integrity" of the Rizal Monument. How far should a building like the Torre

de Manila be from the Rizal Monument - one, two, three, four, or five kilometers?
Even the Solicitor General, during the Oral Arguments, conceded that the
ordinance does not prescribe how sightline is determined, neither is there any way
to measure by metes and bounds whether al construction that is not part of the
historic monument itself or is outside the protected area can be said to violate the
Rizal Monument's physicalintegrity, except only to say "when you stand in front of
the Rizal Monument, there can be no doubt that your view is marred and
impaired." This kind of a standard has no parameters and can include a sightline or
a construction as far as the human eyes can see when standing in front of the Rizal
Monument. Obviously, this Court cannot apply such a subjective and non-uniform
standard that adversely affects property rights several kilometers away from a
historical sight or facility.
The Dissenting Opinion claims that "the City, by reason of a mistaken or erroneous
construction of its own Ordinance, had failed to consider its duties under
[Ordinance No. 8119] when it issued permits in DMCI-PDI's favor." However,
MZBAA Zoning Board Resolution Nos. 06 and 06-A67 easily dispel this claim.
According to the resolutions, the City of Manila, through the MZBAA, acted on
DMCI-PDI's application for variance under the powers and standards set forth in
Ordinance No. 8119.
Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily
in issuing said resolution, the Court should respect MZBAA's exercise of discretion.
The Court cannot "substitute its I judgment :for that of said officials who are in a
better position to consider and weigh the same in the light of the authority
specifically vested in them by law." 68 Since the Court has "no supervisory power
over the proceedings I and actions of the administrative departments of the
government," it "should not generally interfere with purely administrative and
discretionary functions.; 69 The power of the Court in mandamus petitions does not
extend "to direct the exercise of judgment or discretion in a particular way or the
retraction or reversal of an action already taken in the exercise of either."70
Still, the Dissenting Opinion insists on directing the re-evaluation by the City of
Manila, through the CPDO, of the permits previously issued in favor of the Torre de
Manila project to determine compliance with the standards ]under Ordinance No.
8119. It also declares that the circumstances in this case warrant
the prohacvice conversion of the proceedings in the issuance of the permits into a
"contested case" necessitating notice and hearing with all the parties involved.
Prohac vice means a specific decision does not constitute a precedent because the
decision is for the specific case only, not to be followed in other cases.
33
A prohac vice decision violates statutory law - Article 8 of the Civil Code - which
states that "judicial decisions applying or interpreting the laws or the Constitution
shall form part of the legal system of the Philippines." The decision of the Court in
this case cannot be prohac vice because by mandate bf the law everydecision of
the Court forms part of the legal system of the Philippines. If another case comes
up with the same facts as the present case, that case must be decided in the same
way as this case to comply with the constitutional mandate of equal protection of
the law. Thus, a prohac vice decision also violates the equal protection clause of
the Constitution.
It is the policy of the courts not to interfere with the discretionary executive acts of
the executive branch unless there is a clear showing of grave abuse of discretion
amounting to lack or excess of jurisdiction. Mandamus does not lie against the
legislative and executive branches or their members acting in the exercise of their
official discretionary functions. This emanates from the respect accorded by the
judiciary to said branches as co-equal entities under the principle of separation of
powers.
In De Castro v. Salas,71 we held that no rule of law is better established than the
one that provides that mandamus will not issue to control the discretion of an
officer or a court when honestly exercised and when such power and authority is
not abused.
In exceptional cases, the Court has granted a prayer for mandamus to compel
action in matters involving judgment and discretion, only "to act, but not to act
lone way or the other," 72 and only in cases where there has been a clear showing
of grave abuse of discretion, manifest injustice, or palpable excess of authority.73
In this case, there can be no determination by this Court that the City of Manila had
been negligent or remiss in its duty under Ordinance No. 8119 considering that this
determination will involve questions of fact. DMCI- PDI had been issued the proper
permits and had secured all approvals and licenses months before the actual
construction began. Even the KOR could not point to any law that respondent City
of Manila had violated and could only point to declarations of policies by the NHCP
and the Venice Charter which do not constitute clear legal bases for the issuance of
a writ of mandam1s.
The Venice Charter is merely a codification of guiding principles for the
preservation and restoration of ancient monuments, sites, and buildings. It brings I
together principles in the field of historical conservation and restoration that have
been developed, agreed upon, and and laid down by experts over the years. Each

country, however, remains "responsible for applying the plan within the framework
of its own culture and traditions."74
The Venice Charter is not a treaty and therefore does not become enforceable as
law. The Philippines is not legally bound to follow its directive, as in fact, these are
not directives but mere guidelines - a set of the best practices and techniques that
have been proven over the years to be the most effective in preserving and
restoring historical monuments, sites and buildings.
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without
going through the process under Ordinance No. 8119. However, the same was
properly rectified when, faced with mounting opposition, DMCI-PDI itself sought
clarification from the City of Manila and immediately began complying with the
procedure for applying for a variance. The MZBAA did subsequently recommend
the approval of the variance and the City Council of Manila approved the same,
ratifying the licenses and permits already given to DMCI-PDI. Such ratification was
well within the right of the City Council of Manila. The City Council of Manila could
have denied the application had it seen any reason to do so. Again, the ratification
is a function of the City Council of Manila, an exercise of its discretion1 and well
within the authority granted it by law and the City's own Ordinance No. 8119.
The main purpose of zoning is the protection of public safety, health, convenience,
and welfare. There is no indication that the Torre de Manila project brings any
harm, danger, or hazard to the people in the surrounding areas except that the
building allegedly poses an unsightly view on the taking of photos or the visual
appreciation of the Rizal Monument by locals and tourists. In fact, the Court must
take the approval of the MZBAA, and its subsequent ratification by the City Council
of Manila, as the duly authorized exercise of discretion by the city officials. Great
care must be taken that the Court does not unduly tread upon the local
government's performance of its duties. It is not for this Court to dictate upon the
other branches bf the government how their discretion must be exercised so long
as these branches do not commit grave abuse of discretion amounting to lack or
excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119 must be determined in the proper
case and before the proper forum. It is not within the power of this Court in this
case to make such determination. Without such determination, this Court cannot
simply declare that the City of Manila had failed to consider its duties under
Ordinance No. 8119 when it issued the permits in DMCI-PDI's favor without making
a finding of fact how the City of Manila failed "to consider" its duties with respect
to areas outside the boundaries of the Rizal Park. In the first place, this Court has
34
no jurisdiction to make findings of fact in an original action like this before this
Court. Moreover the City of Manila could not legally apply standards to sites
outside the area covered by the ordinance that prescribed the standards. With this,
I taken in light of the lack of finding that there was grave abuse of discretion I on
the part of the City of Manila, there is no basis to issue the writ of mandamus
against the City of Manila.
During the Oral Arguments, it was established that the granting of a variance
neither uncommon nor irregular. On the contrary, current practice has made
granting of a variance the rule rather than the exception:
JUSTICE CARPIO: Let's go to Ordinance 8119. For residential condominium that
stand alone, in other words not part of a commercial complex or an industrial
complex ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire City of
Manila, the FAR 4, correct? ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.
JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex or industrial
projects.
ATTY. FLAMINIANO: There might be, the FAR might be different when it comes to
condominiums in commercial areas, Your Honor.
JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUITICE CARPIO: ... residential condominiums...
ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
JUSTICE CARPIO: And the percentage of land occupancy is always 60 percent.
ATTY. FLAMINIANO: 60 percent correct, Your Honor.
JUSTICE CARPIO: Okay ... how many square meters is this Torre de Manila?

ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000 ... 5,556.
JUSTICE CARPIO: So, it's almost half a hectare.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I mean at FAR 4, is
that correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...
JUSTICE CARPIO: Yes, but that is a rule.
ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.
JUSTICE CARPIO: 60 percent of...
ATTY. FLAMINIANO: Of the land area.
JUSTICE CARPIO: ... buildable, the rest not buildable.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila anywhere
you go, you look at stand alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.
JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And the buildable area is to the edge of the property ...it's not 60
percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.
35
JUSTICE CARPIO: So, if you look at all the ... residential buildings in the last ten
years, they [have] all variances. They did not follow the original FAR 4 or the 60
percent (of land occupancy). Every residential building that stand alone was a
variance. ATTY. FLAMINIANO: That's correct, Your Honor.
JUSTICE CARPIO: So the rule really in the City of Manila is variance, and the
exception which is never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor.
JUSTICE CARPIO: Every developer will have to get a variance because it doesn't
make sense to follow FAR 4 because the land is so expensive and if you can build
only two storeys on a 1,000-square meter lot, you will surely lose money,
correct? ATTY. FLAMINIANO: Exactly, Your Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance cannot be used as a basis to grant the
mandamus petition absent any clear finding that said act amo'1nted to "grave
abuse of discretion, manifest injustice, or palpable excess of authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the construction of the Torre de Manila
project. The KOR itself came up with the idea to build a structure right behind the
Rizal Monument that would dwarf the Rizal Monument.
In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC) l
formulated a plan to build an Educational Center within the Rizal Park. In July 1955,
the KOR proposed the inclusion of a national theater on the site of the Educational
Center. The JRNCC adopted the proposal. The following[ year, a law - Republic Act
No. 142776 - authorized the establishment of the Jose Rizal National Cultural Shrine
consisting of a national theater, a national museum, and a national library on a
single site. 77
To be built on the open space right behind the 12.7 meter high Rizal Monument
were: the KOR's proposed nationaltheater, standing 29.25 meters high and 286
meters in distance from the Rizal Monument; the nationallibrary, standing 25 .6
meters high and 180 meters in distance from the Rizal ;Monument, with its rear
along San Luis Street (now T.M. Kalaw Street); and facing it, the nationalmuseum,

at 19.5 meters high and 190 meters in I distance from the Rizal Monument, with its
back along P. Burgos Street. 78
However, several sectors voiced their objections to the construction for various
reasons. Among them, the need to preserve the open space of the park, the high
cost of construction, the desecration of the park's hallowed grounds, and the fact
that the proposed cultural center including the 129.25 meter high national
theater proposed by the KOR would dwarf the 12.7 meter high Rizal
Monument. 79 The JRNCC revised the plan and only the National Library - which still
stands today - was built. 80
According to the NHCP, the KOR even proposed to build a Rizal Center on the park
as recently as 2013.81 The proposal was disapproved by the NHCR and the
Department of Tourism.
Surely, as noble as the KOR's intentions were, its proposed center would have
dwarfed the Rizal Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to the
rear of the Rizal Monument - approximately 870 meters from the Rizal Monument
and 3 0 meters from the edge of Rizal Park. 82
It is a basic principle that "one who seeks equity and justice must come to court
with clean hands. "83 In Jenosa v. Delariarte, 84 the Court reiterated ,that he who
seeks equity must do equity, and he who comes into equity must come with clean
hands. This "signifies that a litigant may be denied relief by a court of equity on the
ground that his conduct has been inequitable, unfair and dishonest, or fraudulent,
or deceitful as to the controversy in issue. " 85Thus, the KOR, having earlier
proposed a national theater a mere 286meters in distance from the back of the
Rizal Monument that would have dwarfed the Rizal Monument, comes to this I
Court with unclean hands. It is now precluded from "seeking any equitable
refuge" 86 from the Court. The KOR's petition should be dismissed on this ground
alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de Manila is a nuisance perse that
deserves to be summarily abated even without judicial proceedings. 87 However,
during the Oral Arguments, counsel for the KOR argued that the KOR now believes
that the Torre de Manila is a nuisance per accidens and not a nuisance perse. 88
36
Article 694 of the Civil Code defines a nuisance as any act, omission, establishment,
business, condition of property, or anything else which: (1) injures or endangers
the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies
or disregards decency or morality; (4) obstructs or interferes with the free passage
of any public highway or street, or any body of water; or (5) hinders or impairs the
use of property.
Thy Court recognizes two kinds of nuisances. The first, nuisance perse, is on
"recognized as a nuisance under any and all circumstances, because it constitutes a
direct menace to public health or safety, and, for that reason, may be abated
summarily under the undefined law of necessity." 89 The second,
nuisance peraccidens, is that which "depends upon certain conditions and
circumstances, and its existence being a question of fact, it cannot be abated
without due hearing thereon in a tribunal authorized to decide whether such a
thing in law constitutes a nuisance. "90
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre
de Manila project cannot be considered as a "direct menace to I public health or
safety." Not only is a condominium project commonplace in the City of Manila,
DMCI-PDI has, according to the proper government agencies, complied with health
and safety standards set by law. DMCI-PDI has been granted the following permits
and clearances prior to starting the project: (1) Height Clearance Permit from the
Civil Aviation Authority of the Philippines;91 (2) Development Permit from the
HLURB;92 (3) Zoning Certification from the HLURB;93 (4) Certificate of
Environmental Compliance Commitment from the Environment Management
Bureau of the Department of Environment and Natural Resources;94 (5) Barangay
Clearance95 (6) Zoning Permit;96 (7) Building Permit;97 (8) and Electrical and
Mechanical Permit.98
Later, DMCI-PDI also obtained the right to build under a variance recommended by
the MZBAA and granted by the City Council of Manila. Thus, there can be no doubt
that the Torre de Manila project is not a nuisance perse.
On the other hand, the KOR now claims that the Torre de Manila is a
nuisance peraccidens.
By definition, a nuisance peraccidens is determined based on its surrounding
conditions and circumstances. These conditions and circumstances must be well
established, not merely alleged. The Court cannot simply accept these conditions
and circumstances as established facts as the KOR would have us do in this

case. 99 The KOR itself concedes that the question of whether the Torre de Manila
is a nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an authority to find facts, to
estimate their force, and to apply rules of law to the case thus made. 101 1lhis Court
is no such authority. It is not a trier of facts. It cannot simply take the allegations in
the petition and accept these as facts, more so in this case where these allegations
are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The
question, then, of whether the Torre de Manila project is a
nuisance peraccidens must be settled after due proceedings brought before the
proper Regional Trial Court. The KOR cannot circumvent the process in the guise be
protecting national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further
injury102 until final adjudication on the merits of the case. In the present case, since
the legal rights of the KOR are not well-defined, clear, and certain, the petition for
mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the findings of I administrative
agencies when they are supported by substantial evidence. In this case, DMCI-PDI
already acquired vested rights in the various permits, licenses, or even variances it
had applied for in order to build a 49-storey building which is, and had been,
allowed by the City of Manila's zoning ordinance.
As we have time and again held, courts generally hesitate to review discretionary
decisions or actions of administrative agencies in the absence of proof that such
decisions or actions were arrived at with grave abuse of discretion amounting to
lack or excess of jurisdiction.
In JRS Business Corp. v. Montesa, 103 we held that mandamus is the proper remedy
if it could be shown that there was neglect on the part of a tribunal in the
performance of an act which the law specifically enjoins as a duty, or there was an
unlawful exclusion of a party from the use and enjoyment be a right to which he is
clearly entitled. Only specific legal rights may be enforced by mandamus if they are
clear and certain. If the legal rights of th6 petitioner are not well-defined, definite,
clear, and certain, 104 the petition must be dismissed. Stated otherwise, the writ
37
never issues in doubtful cases. It neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to perform a duty
already imposed. 105
In sum, bearing in mind the Court does not intervene in discretionary acts of the
executive department in the absence of grave abuse of discretion, 106 and
considering that mandamus may only be issued to enforce a clear and certain legal
right, 107 the present special civil action for mandamus must be dismissed and the
TRO issued earlier must be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo Adios, the
poem he left for his family the night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora
Y al fin anuncia el dia tras lobrego capuz 108
[Ako’y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat
sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break,
Through the gloom of night, to herald the day] 110
Yet at the point of his execution, he was made to stand facing West towards Manila
Bay, with his back to the firing squad, like the traitor the colonial government
wished to portray him. He asked to face his executioners, facing the East where the
sun would be rising since it was early morning, but the Spanish captain did not
allow it. As he was shot and a single bullet struck his frail body, Rizal forced himself,
with his last remaining strength, to turn around to face the East and thus he fell on
his back with] his face to the sky and the rising sun. Then, the Spanish captain
approached Rizal and finished him off with one pistol shot to his head.
Before his death, Rizal wrote a letter to his family. He asked for a simple tomb,
marked with a cross and a stone with only his name and the date of his birth and
death; no anniversary celebrations; and interment at Paang Bundok(now, the
Manila North Cemetery). Rizal never wanted his grave to be a burden to future
generations.

The letter never made it to his family and his wishes were not carried out. The
letter was discovered many years later, in 1953. By then, his remains had been
entombed at the Rizal Monument, countless anniversaries had been . celebrated,
with memorials and monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without pomp or pageantry; to the
point of reaching oblivion or obscurity in the future. 111 For Rizal's life was never
about fame or vainglory, but for the country he loved dearly and for which he gave
up his life.
The Rizal Monument is expressly against Rizal' s own wishes. That Rizal's statue
now stands facing West towards Manila Bay, with Rizal's back to the East, adds salt
to the wound. If we continue the present orientation of Rizal's statue, with Rizal
facing West, we would be like the Spanish captain who refused Rizal's request to
die facing the rising sun in the East. On the other hand, if Rizal' s statue is made to
face East, as Rizal had desired when he was about to be shot, the background - the
blue sky above Manila Bay - would forever be clear of obstruction, and we would
be faithful to Rizal's dying wish.
WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015
is LIFTED effective immediately.
SO ORDERED.
Remedial Law.
Mandamus only issues when there is a clear legal duty imposed upon the office or
the officer sought to be compelled to perform an act, and when the party seeking
mandamus has a clear legal right to the performance of such act.
Remedial Law.
Injunctive reliefs are meant to preserve substantive rights and prevent further
injury102 until final adjudication on the merits of the case. In the present case,
since the legal rights of the KOR are not well-defined, clear, and certain, the
petition for mandamus must be dismissed and the TRO lifted.
There is no law prohibiting the construction of the Torre de Manila. What is not
expressly or impliedly prohibited by law may be done, except when the act is
contrary to morals, customs and public order.” This principle is fundamental in a
38
democratic society, to protect the weak against the strong, the minority against the
majority, and the individual citizen against the government. In essence, this
principle, which is the foundation of a civilized society under the rule of law,
prescribes that the freedom to act can be curtailed only through law.
FACTS:
DMCI started construction of Torre De Manila Condominium, after it was issued
Building permit by the City Of Manila Office allowing it to build a 49 Storey with
Basement & 2 penthouse Level Residential Conduminium.
However the City Council of Manila issued Resolution No. 121 enjoining the Office
of the Building Official to temporarily suspend the Building Permit og DMC citing
among others, that “the Torre de Manila Condominium, based on their
development plans, upon completion, will rise up high above the back of the
national monument, to clearly dwarf the statue of our hero, and with such
towering heights, would certainly ruin the line of sight of the Rizal Shrine from the
frontal Roxas Boulevard vantage point.”
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila’s
City Legal Officer on whether he is bound to comply with Resolution No. 121.8 In his
letter dated 12 September 2012, City Legal Officer Renato G. Dela Cruz stated that
there is “no legal justification for the temporary suspension of the Building Permit
issued in favor of [DMCI-PDI]” since the construction “lies outside the Luneta Park”
and is “simply too far to be a repulsive distraction or have an objectionable effect
on the artistic and historical significance” of the Rizal Monument.9 He also pointed
out that “there is no showing that the [area of] subject property has been officially
declared as an anthropological or archeological area. Neither has it been
categorically designate.
National Historical Commission of the Philippines Dr. Maria Serena I. Diokno
maintained that the Torre de Manila project site is outside the boundaries of the
Rizal Park and well to the rear of the Rizal Monument, and thus, cannot possibly
obstruct the frontal view of the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila
project that garnered about 7,800 signatures, the City Council of Manila issued
Resolution No. 146, reiterating its directive in Resolution No. 121 enjoining the City
of Manila’s building officials to temporarily suspend DMCI-PDI’s Building Permit.
Manila Zoning Board of Adjustments and Appeals (MZBAA) issued Zoning Board
Resolution No. 06, Series of 2013, recommending the approval of DMCI-PDI’s
application for variance, which was later on amended.

The City Council resolution later states that “the City Council of Manila find[s] no
cogent reason to deny and/or reverse the aforesaid recommendation of the
[MZBAA] and hereby ratifies] and confirm[s] all previously issued permits,
licenses and approvals issued by the City [Council] of Manila for Torre de
Manila[.]”
On 12 September 2014, the Knights Of Rizal, a “civic, patriotic, cultural, non-
partisan, non-sectarian and non-profit organization”18 created under Republic Act
No. 646,19 filed a Petition for Injunction seeking a temporary restraining order,
and later a permanent injunction, against the construction of DMCI- PDI’s Torre
de Manila condominium project. The KOR argues that the subject matter of the
present suit is one of “transcendental importance, paramount public interest, of
overarching significance to society, or with far- reaching implication” involving
the desecration of the Rizal Monument.
Issues
1. Whether or not the Court can issue a writ of mandamus against the officials of the
City of Manila to stop the construction of DMCI-PDI’s Torre de Manila Project; and
2. Whether or not Torre De Manila is a nuisance per se.
Ruling
The petition for mandamus lacks merit and must be dismissed.
Mandamus does not lie against the City of Manila.
The Constitution states that “[n]o person shall be deprived of life, liberty or
property without due process of law x x x.”61 It is a fundamental principle that no
property shall be taken away from an individual without due process, whether
substantive or procedural. The dispossession of property, or in this case the
stoppage of the construction of a building in one’s own property, would violate
substantive due process.
The Rules on Civil Procedure are clear that mandamus only issues when there is a
clear legal duty imposed upon the office or the officer sought to be compelled to
perform an act, and when the party seeking mandamus has a clear legal right to
the performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
ordinance, or rule for that matter, that the construction of a building outside the
Rizal Park is prohibited if the building is within the background sightline or view of
the Rizal Monument. Thus, there is no legal duty on the part of the City of
Manila “to consider,” in the words of the Dissenting Opinion, “the standards set
39
under Ordinance No. 8119” in relation to the applications of DMCI-PDI for the
Torre de Manila since under the ordinance these standards can never be applied
outside the boundaries of Rizal Park. While the Rizal Park has been declared a
National Historical Site, the area where Torre de Manila is being built is a privately-
owned property that is “not part of the Rizal Park that has been declared as a
National Heritage Site in 1995,” and the Torre de Manila area is in fact “well-
beyond” the Rizal Park, according to NHCP Chairperson Dr. Maria Serena I.
Diokno.62 Neither has the area of the Torre de Manila been designated as a
“heritage zone, a cultural property, a historical landmark or even a national
treasure.”63
Also, to declare that the City of Manila failed to consider the standards under
Ordinance No. 8119 would involve making a finding of fact. A finding of fact
requires notice, hearing, and the submission of evidence to ascertain compliance
with the law or regulation. In such a case, it is the Regional Trial Court which has
the jurisdiction to hear the case, receive evidence, make a proper finding of fact,
and determine whether the Torre de Manila project properly complied with the
standards set by the ordinance. In Meralco v. Public Service Commission,64 we held
that it is the cardinal right of a party in trials and administrative proceedings to be
heard, which includes the right of the party interested or affected to present his
own case and submit evidence in support thereof and to have such evidence
presented considered by the proper court or tribunal.
To compel the City of Manila to consider the standards under Ordinance No. 8119
to the Torre de Manila project will be an empty exercise since these standards
cannot apply outside of the Rizal Park- and the Torre de Manila is outside the Rizal
Park. Mandamus will lie only if the officials of the City of Manila have a
ministerial duty to consider these standards to buildings outside of the Rizal Park.
There can be no such ministerial duty because these standards are not applicable
to buildings outside of the Rizal Park.
The KOR also invokes this Court’s exercise of its extraordinary certiorari power of
review under Section 1, Article VIII65 of the Constitution. However, this Court can
only exercise its extraordinary certiorari power if the City of Manila, in issuing the
required permits and licenses, gravely abused its discretion amounting to lack or
excess of jurisdiction. Tellingly, neither the majority nor minority opinion in this
case has found that the City of Manila committed grave abuse of discretion in
issuing the permits and licenses to DMCI-PDI. Thus, there is no justification at all for
this Court to exercise its extraordinary certiorari power.
Moreover, the exercise of this Court’s extraordinary certiorari power is limited to
actual cases and controversies that necessarily involve a violation of the

Constitution or the determination of the constitutionality or validity of a
governmental act or issuance. Specific violation of a statute that does not raise the
issue of constitutionality or validity of the statute cannot, as a rule, be the subject
of the Court’s direct exercise of its expanded certiorari power. Thus, the KOR’s
recourse lies with other judicial remedies or proceedings allowed under the Rules
of Court.
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved
Medical Centers Association, Inc.,66 we held that in cases where the question of
constitutionality of a governmental action is raised, the judicial power that the
courts exercise is likewise identified as the power of judicial review– the power to
review the constitutionality of the actions of other branches of government. As a
rule, as required by the hierarchy of courts principle, these cases are filed with
the lowest court with jurisdiction over the subject matter. The judicial review
that the courts undertake requires:
1) there be an actual case or controversy calling for the exercise of judicial power;
2) the person challenging the act must have “standing” to challenge; he must have
a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement;
3) the question of constitutionality must be raised at the earliest possible
opportunity; and
4) the issue of constitutionality must be the very lis mota of the case.
The lower court’s decision under the constitutional scheme reaches the Supreme
Court through the appeal process, through a petition for review on certiorari under
Rule 45 of the Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in an
original petition for injunction which we later on treated as one for mandamus
under Rule 65. There is, however, no clear legal duty on the City of Manila to
consider the provisions of Ordinance No. 8119 for applications for permits to
build outside the protected areas of the Rizal Park. Even if there were such legal
duty, the determination of whether the City of Manila failed to abide by this legal
duty would involve factual matters which have not been admitted or established in
this case. Establishing factual matters is not within the realm of this Court. Findings
of fact are the province of the trial courts.
There is no standard in Ordinance No. 8119 for defining or determining the
background sightline that is supposed to be protected or that is part of the
“physical integrity” of the Rizal Monument. How far should a building like the Torre
de Manila be from the Rizal Monument- one, two, three, four, or five kilometers?
40
Even the Solicitor General, during the Oral Arguments, conceded that the
ordinance does not prescribe how sightline is determined, neither is there any way
to measure by metes and bounds whether a construction that is not part of the
historic monument itself or is outside the protected area can be said to violate the
Rizal Monument’s physical integrity, except only to say “when you stand in front of
the Rizal Monument, there can be no doubt that your view is marred and
impaired.” This kind of a standard has no parameters and can include a sightline or
a construction as far as the human eyes can see when standing in front of the Rizal
Monument. Obviously, this Court cannot apply such a subjective and non-uniform
standard that adversely affects property rights several kilometers away from a
historical sight or facility.
The Dissenting Opinion claims that “the City, by reason of a mistaken or erroneous
construction of its own Ordinance, had failed to consider its duties under
[Ordinance No. 8119] when it issued permits in DMCI-PDI’s favor.” However,
MZBAA Zoning Board Resolution Nos. 06 and 06-A67easily dispel this claim.
According to the resolutions, the City of Manila, through the MZBAA, acted on
DMCI-PDI’s application for variance under the powers and standards set forth in
Ordinance No. 8119.
Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily
in issuing said resolution, the Court should respect MZBAA’s exercise of discretion.
The Court cannot “substitute its judgment for that of said officials who are in a
better position to consider and weigh the same in the light of the authority
specifically vested in them by law.”68 Since the Court has “no supervisory power
over the proceedings and actions of the administrative departments of the
government,” it “should not generally interfere with purely administrative and
discretionary functions.”69 The power of the Court in mandamus petitions does not
extend “to direct the exercise of judgment or discretion in a particular way or the
retraction or reversal of an action already taken in the exercise of either”70
Still, the Dissenting Opinion insists on directing the re-evaluation by the City of
Manila, through the CPDO, of the permits previously issued in favor of the Torre de
Manila project to determine compliance with the standards under Ordinance No.
8119. It also declares that the circumstances in this case warrant the pro hac
vice conversion of the proceedings in the issuance of the permits into a “contested
case” necessitating notice and hearing with all the parties involved.
Pro hac vice means a specific decision does not constitute a precedent because the
decision is for the specific case only, not to be followed in other cases. A pro hac
vice decision violates statutory law- Article 8 of the Civil Code- which states that
“judicial decisions applying or interpreting the laws or the Constitution shall form

part of the legal system of the Philippines.” The decision of the Court in this case
cannot be pro hac vice because by mandate of the law every decision of the Court
forms part of the legal system of the Philippines. If another case comes up with the
same facts as the present case, that case must be decided in the same way as this
case to comply with the constitutional mandate of equal protection of the law.
Thus, a pro hac vice decision also violates the equal protection clause of the
Constitution.
It is the policy of the courts not to interfere with the discretionary executive acts of
the executive branch unless there is a clear showing of grave abuse of discretion
amounting to lack or excess of jurisdiction. And subject to well-settled exceptions,
mandamus does not lie against the legislative and executive branches or their
members acting in the exercise of their official ministerial functions. This emanates
from the respect accorded by the judiciary to said branches as co-equal entities
under the principle of separation of powers.
In De Castro v. Salas,71 we held that no rule of law is better established than the
one that provides that mandamus will not issue to control the discretion of an
officer or a court when honestly exercised and when such power and authority is
not abused.
In exceptional cases, the Court has granted a prayer for mandamus to compel
action in matters involving judgment and discretion, only “to act, but not to act one
way or the other,”72 and only in cases where there has been a clear showing of
grave abuse of discretion, manifest injustice, or palpable excess of authority.73
In this case, there can be no determination by this Court that the City of Manila had
been negligent or remiss in its duty under Ordinance No. 8119 considering that this
determination will involve questions of fact. DMCI- PDI had been issued the proper
permits and had secured all approvals and licenses months before the actual
construction began. Even the KOR could not point to any law that respondent City
of Manila had violated and could only point to declarations of policies by the NHCP
and the Venice Charter which do not constitute clear legal bases for the issuance of
a writ of mandamus.
The Venice Charter is merely a codification of guiding principles for the
preservation and restoration of ancient monuments, sites, and buildings. It brings
together principles in the field of historical conservation and restoration that have
been developed, agreed upon, and and laid down by experts over the years. Each
country, however, remains “responsible for applying the plan within the framework
of its own culture and traditions.”74
41
The Venice Charter is not a treaty and therefore does not become enforceable as
law. The Philippines is not legally bound to follow its directive, as in fact, these are
not directives but mere guidelines- a set of the best practices and techniques that
have been proven over the years to be the most effective in preserving and
restoring historical monuments, sites and buildings.
The City of Manila concedes that DMCI-PDI’s Zoning Permit was granted without
going through the process under Ordinance No. 8119. However, the same was
properly rectified when, faced with mounting opposition, DMCI-PDI itself sought
clarification from the City of Manila and immediately began complying with the
procedure for applying for a variance. The MZBAA did subsequently recommend
the approval of the variance and the City Council of Manila approved the same,
ratifying the licenses and permits already given to DMCI-PDI. Such ratification was
well within the right of the City Council of Manila. The City Council of Manila could
have denied the application had it seen any reason to do so. Again, the ratification
is a function of the City Council of Manila, an exercise of its discretion and well
within the authority granted it by law and the City’s own Ordinance No. 8119.
The main purpose of zoning is the protection of public safety, health,
convenience, and welfare. There is no indication that the Torre de Manila project
brings any harm, danger, or hazard to the people in the surrounding areas except
that the building allegedly poses an unsightly view on the taking of photos or the
visual appreciation of the Rizal Monument by locals and tourists. In fact, the
Court must take the approval of the MZBAA, and its subsequent ratification by the
City Council of Manila, as the duly authorized exercise of discretion by the city
officials. Great care must be taken that the Court does not unduly tread upon the
local government’s performance of its duties. It is not for this Court to dictate upon
the other branches of the government how their discretion must be exercised so
long as these branches do not commit grave abuse of discretion amounting to lack
or excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119 must be determined in the proper
case and before the proper forum. It is not within the power of this Court in this
case to make such determination. Without such determination, this Court cannot
simply declare that the City of Manila had failed to consider its duties under
Ordinance No. 8119 when it issued the permits in DMCI-PDI’s favor without making
a finding of fact how the City of Manila failed “to consider” its duties with respect
to areas outside the boundaries of the Rizal Park. In the first place, this Court has
no jurisdiction to make findings of fact in an original action like this before this
Court. Moreover, the City of Manila could not legally apply standards to sites
outside the area covered by the ordinance that prescribed the standards. With this,
taken in light of the lack of finding that there was grave abuse of discretion on the

part of the City of Manila, there is no basis to issue the writ of mandamus against
the City of Manila.
3. Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de Manila is a nuisance per’ se that
deserves to be summarily abated even without judicial proceedings.87 However,
during the Oral Arguments, counsel for the KOR argued that the KOR now believes
that the Torre de Manila is a nuisance per accidens and not a nuisance per se.88
Article 694 of the Civil Code defines a nuisance as any act, omission,
establishment, business, condition of property, or anything else which: (1) injures
or endangers the health or safety of others; (2) annoys or offends the senses; (3)
shocks, defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public highway or street, or any body of water; or (5)
hinders or impairs the use of property.
The Court recognizes two kinds of nuisances. The first, nuisance per se, is one
“recognized as a nuisance under any and all circumstances, because it constitutes a
direct menace to public health or safety, and, for that reason, may be abated
summarily under the undefined law of necessity.”89 The second, nuisance per
accidens, is that which “depends upon certain conditions and circumstances, and
its existence being a question of fact, it cannot be abated without due hearing
thereon in a tribunal authorized to decide whether such a thing in law constitutes a
nuisance.”90
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre
de Manila project cannot be considered as a “direct menace to public health or
safety.” Not only is a condominium project commonplace in the City of Manila,
DMCI-PDI has, according to the proper government agencies, complied with health
and safety standards set by law. DMCI-PDI has been granted the following permits
and clearances prior to starting the project: (1) Height Clearance Permit from the
Civil Aviation Authority of the Philippines;91 (2) Development Permit from the
HLURB;92 (3) Zoning Certification from the HLURB;93 (4) Certificate of
Environmental Compliance Commitment from the Environment Management
Bureau of the Department of Environment and Natural Resources;94 (5) Barangay
Clearance;95 (6) Zoning Permit;96 (7) Building Permit;97 (8) and Electrical and
Mechanical Permit.98
Later, DMCI-PDI also obtained the right to build under a variance recommended by
the MZBAA and granted by the City Council of Manila. Thus, there can be no doubt
that the Torre de Manila project is not a nuisance per se.
42
On the other hand, the KOR now claims that the Torre de Manila is a nuisance per
accidens.
By definition, a nuisance per accidens is determined based on its surrounding
conditions and circumstances. These conditions and circumstances must be well
established, not merely alleged. The Court cannot simply accept these conditions
and circumstances as established facts as the KOR would have us do in this
case.99 The KOR itself concedes that the question of whether the Torre de Manila is
a nuisance per accidens is a question of fact.100
The authority to decide when a nuisance exists is an authority to find facts, to
estimate their force, and to apply rules of law to the case thus made.101 This Court
is no such authority. It is not a trier of facts. It cannot simply take the allegations in
the petition and accept these as facts, more so in this case where these allegations
are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The
question, then, of whether the Torre de Manila project is a nuisance per
accidens must be settled after due proceedings brought before the proper Regional
Trial Court. The KOR cannot circumvent the process in the guise of protecting
national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further
injury102 until final adjudication on the merits of the case. In the present case,
since the legal rights of the KOR are not well-defined, clear, and certain, the
petition for mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the findings of administrative
agencies when they are supported by substantial evidence. In this case, DMCI-PDI
already acquired vested rights in the various permits, licenses, or even variances it
had applied for in order to build a 49-storey building which is, and had been,
allowed by the City of Manila’s zoning ordinance.
As we have time and again held, courts generally hesitate to review discretionary
decisions or actions of administrative agencies in the absence of proof that such
decisions or actions were arrived at with grave abuse of discretion amounting to
lack or excess of jurisdiction.
In JRS Business Corp. v. Montesa,103 we held that mandamus is the proper remedy
if it could be shown that there was neglect on the part of a tribunal in the
performance of an act which the law specifically enjoins as a duty, or there was an

unlawful exclusion of a party from the use and enjoyment of a right to which he is
clearly entitled. Only specific legal rights may be enforced by mandamus if they are
clear and certain. If the legal rights of the petitioner are not well-defined, definite,
clear, and certain,104 the petition must be dismissed. Stated otherwise, the writ
never issues in doubtful cases. It neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to perform a duty
already imposed.105
In sum, bearing in mind the Court does not intervene in discretionary acts of the
executive department in the absence of grave abuse of discretion,106 and
considering that mandamus may only be issued to enforce a clear and certain legal
right,107 the present special civil action for mandamus must be dismissed and the
TRO issued earlier must be lifted.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission,53 the Court held that
“what is not expressly or impliedly prohibited by law may be done, except when
the act is contrary to morals, customs and public order.” This principle is
fundamental in a democratic society, to protect the weak against the strong, the
minority against the majority, and the individual citizen against the government. In
essence, this principle, which is the foundation of a civilized society under the rule
of law, prescribes that the freedom to act can be curtailed only through law.
Without this principle, the rights, freedoms, and civil liberties of citizens can be
arbitrarily and whimsically trampled upon by the shifting passions of those who can
shout the loudest, or those who can gather the biggest crowd or the most number
of Internet trolls. In other instances,54the Court has allowed or upheld actions that
were not expressly prohibited by statutes when it determined that these acts were
not contrary to morals, customs, and public order, or that upholding the same
would lead to a more equitable solution to the controversy. However, it is the law
itself- Articles 130655 and 1409(1 )56 of the Civil Code- which prescribes that acts
not contrary to morals, good customs, public order, or public policy are allowed if
also not contrary to law.
In this case, there is no allegation or proof that the Torre de Manila project is
“contrary to morals, customs, and public order” or that it brings harm, danger, or
hazard to the community. On the contrary, the City of Manila has determined that
DMCI-PDI complied with the standards set under the pertinent laws and local
ordinances to construct its Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting the
construction of the Torre de Manila due to its effect on the background “view,
vista, sightline, or setting” of the Rizal Monument.
43
Zoning, as well as land use, in the City of Manila is governed by Ordinance No.
8119. The ordinance provides for standards and guidelines to regulate
development projects of historic sites and facilities within the City of Manila.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards.- Historic sites and
facilities shall be conserved and preserved. These shall, to the extent possible, be
made accessible for the educational and cultural enrichment of the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and enhance
their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a designated
heritage property will require the approval of the City Planning and Development
Office (CPDO) and shall be required to prepare a heritage impact statement that
will demonstrate to the satisfaction of CPDO that the proposal will not adversely
impact the heritage significance of the property and shall submit plans for review
by the CPDO in coordination with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties shall be
evaluated based on criteria established by the heritage significance of the
particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a
designated heritage property or properties, the owner shall be required to provide
evidence to satisfaction that demonstrates that rehabilitation and re-use of the
property is not viable.
6. Any designated heritage property which is to be demolished or significantly altered
shall be thoroughly documented for archival purposes with a history, photographic
records, and measured drawings, in accordance with accepted heritage recording
guidelines, prior to demolition or alteration.
7. Residential and commercial infill in heritage areas will be sensitive to the existing
scale and pattern of those areas, which maintains the existing landscape and
streetscape qualities of those areas, and which does not result in the loss of any
heritage resources.
8. Development plans shall ensure that parking facilities (surface lots, residential
garages, stand-alone parking garages and parking components as parts of larger
developments) are compatibly integrated into heritage areas, and/or are
compatible with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to place
metering equipment, transformer boxes, power lines, conduit, equipment boxes,
piping, wireless telecommunication towers and other utility equipment and devices

in locations which do not detract from the visual character of heritage resources,
and which do not have a negative impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration of the
heritage property to ensure that design guidelines and standards are met and shall
promote preservation and conservation of the heritage property. (Emphasis
supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only
serve as guides, as it expressly states that “the following shall guide the
development of historic sites and facilities.” A guide simply sets a direction or gives
an instruction to be followed by property owners and developers in order to
conserve and enhance a property’s heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards.- The City considers it in the public interest
that all projects are designed and developed in a safe, efficient and aesthetically
pleasing manner. Site development shall consider the environmental character and
limitations of the site and its adjacent properties. All project elements shall be in
complete harmony according to good design principles and the subsequent
development must be visually pleasing as well as efficiently functioning especially
in relation to the adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with regard to safety,
efficiency and high standards of design. The natural environmental character of the
site and its adjacent properties shall be considered in the site development of each
building and facility.
2. The height and bulk of buildings and structures shall be so designed that it does not
impair the entry of light and ventilation, cause the loss of privacy and/or create
nuisances, hazards or inconveniences to adjacent developments.
3. Abutments to adjacent properties shall not be allowed without the neighbor’s prior
written consent which shall be required by the City Planning and Development
Office (CPDO) prior to the granting of a Zoning Permit (Locational Clearance).
4. The capacity of parking areas/ lots shall be per the minimum requirements of the
National Building Code. These shall be located, developed and landscaped in order
to enhance the aesthetic quality of the facility. In no case, shall parking areas/ lots
encroach into street rights-of- way and shall follow the Traffic Code as set by the
City.
44
5. Developments that attract a significant volume of public modes of transportation,
such as tricycles, jeepneys, buses, etc., shall provide on-site parking for the same.
These shall also provide vehicular loading and unloading bays so as street traffic
flow will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing materials shall be
provided to all noise and vibration-producing machinery. Noise levels shall be
maintained according to levels specified in DENR DAO No. 30- Abatement of Noise
and Other Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or felt
from any point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental to the
skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and other
regulatory tools that will ensure high quality developments shall be required from
developers of commercial subdivisions and condominiums. These shall be
submitted to the City Planning and Development Office (CPDO) for review and
approval. (Emphasis supplied)
Section 47 of Ordinance No. 8119 specifically regulates the “development of
historic sites and facilities.” Section 48 regulates “large commercial signage
and/or pylon.” There is nothing in Sections 47 and 48 of Ordinance No. 8119 that
disallows the construction of a building outside the boundaries of a historic site or
facility, where such building may affect the background of a historic site. In this
case, the Torre de Manila stands 870 meters outside and to the rear of the Rizal
Monument and “cannot possibly obstruct the front view of the [Rizal]
Monument.”57Likewise, the Torre de Manila is not in an area that has been
declared as an “anthropological or archeological area” or in an area designated as a
heritage zone, cultural property, historical landmark, or a national treasure by the
NHCP.58
Section 15, Article XIV of the Constitution, which deals with the subject of arts and
culture, provides that “[t]he State shall conserve, promote and popularize the
nation’s historical and cultural heritage and resources x x x.” Since this provision is
not self-executory, Congress passed laws dealing with the preservation and
conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or the National Cultural Heritage Act of
2009, which empowers the National Commission for Culture and the Arts and other
cultural agencies to issue a cease and desist order “when the physical integrity of
the national cultural treasures or important cultural properties [is] found to be in
danger of destruction or significant alteration from its original state.”60 This law
declares that the State should protect the “physical integrity” of the heritage
property or building if there is “danger of destruction or significant alteration from
its original state.” Physical integrity refers to the structure itself- how strong and
sound the structure is. The same law does not mention that another project,
 45

building, or property, not itself a heritage property or building, may be the subject
of a cease and desist order when it adversely affects the background view, vista, or
sightline of a heritage property or building. Thus, Republic Act No. 10066 cannot
apply to the Torre de Manila condominium project.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo Adios, the
poem he left for his family the night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora Y al fin anuncia el dia tras lobrego
capuz108
[Ako y mamamatay, ngayong namamalas na sa Silanganan ay namamanaag yaong
maligayang araw na sisikat sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break, Through the gloom of night, to herald the
day]110
facing West, we would be like the Spanish captain who refused Rizal’s request to
die facing the rising sun in the East. On the other hand, if Rizal’s statue is made to
face East, as Rizal had desired when he was about to be shot, the background- the
blue sky above Manila Bay- would forever be clear of obstruction, and we would be
faithful to Rizal’s dying wish.
WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015
is LIFTED effective immediately.
SO ORDERED.

Yet at the point of his execution, he was made to stand facing West towards Manila
Bay, with his back to the firing squad, like the traitor the colonial government
wished to portray him. He asked to face his executioners, facing the East where the
sun would be rising since it was early morning, but the Spanish captain did not
allow it. As he was shot and a single bullet struck his frail body, Rizal forced himself,
with his last remaining strength, to turn around to face the East and thus he fell on
his back with his face to the sky and the rising sun. Then, the Spanish captain
approached Rizal and finished him off with one pistol shot to his head.
Before his death, Rizal wrote a letter to his family. He asked for a simple tomb,
marked with a cross and a stone with only his name and the date of his birth and
death; no anniversary celebrations; and interment at Paang Bundok (now, the
Manila North Cemetery). Rizal never wanted his grave to be a burden to future
generations.

The letter never made it to his family and his wishes were not carried out. The
letter was discovered many years later, in 1953. By then, his remains had been
entombed at the Rizal Monument, countless anniversaries had been celebrated,
with memorials and monuments built throughout the world.
Rizal’s wish was unmistakable: to be buried without pomp or pageantry, to the
point of reaching oblivion or obscurity in the future. 111 For Rizal’s life was never
about fame or vainglory, but for the country he loved dearly and for which he gave
up his life.

The Rizal Monument is expressly against Rizal’s own wishes. That Rizal’s statue now
stands facing West towards Manila Bay, with Rizal’s back to the East, adds salt to
the wound. If we continue the present orientation of Rizal’s statue, with Rizal

EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA), respondents.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly propose
amendments to the Constitution through the system of initiative under Section 2 of
Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention,
as this system of initiative was unknown to the people of this country, except
perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent1 and the main
sponsor2 of the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative".3 Indeed it is, for both under the 1935 and
1973 Constitutions, only two methods of proposing amendments to, or revision of,
the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths
of all its members and (2) by a constitutional convention.4 For this and the other
reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative"
(hereafter, Delfin Petition)5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
46
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
People's Initiative,6 a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and
other volunteers intend to exercise the power to directly propose amendments to
the Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,
signature stations shall be established all over the country, with the assistance of
municipal election registrars, who shall verify the signatures affixed by individual
signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately inform the
people of the electoral process involved, it is likewise necessary that the said order,
as well as the Petition on which the signatures shall be affixed, be published in
newspapers of general and local circulation, under the control and supervision of
the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of
the Constitution. Attached to the petition is a copy of a "Petition for Initiative on
the 1987 Constitution" 10 embodying the proposed amendments which consist in
the deletion from the aforecited sections of the provisions concerning term limits,
and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4
AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND
96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a)
directing Delfin "to cause the publication of the petition, together with the
attached Petition for Initiative on the 1987 Constitution (including the proposal,

proposed constitutional amendment, and the signature form), and the notice of
hearing in three (3) daily newspapers of general circulation at his own expense" not
later than 9 December 1996; and (b) setting the case for hearing on 12 December
1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for
Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S.
Roco, together with his two other lawyers, and representatives of, or counsel for,
the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang
Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the
Delfin Petition on the ground that it is not the initiatory petition properly
cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor
Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action
for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the
Constitution can only be implemented by law to be passed by Congress.
No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act
Prescribing and Regulating Constitution Amendments by People's
Initiative, which petitioner Senator Santiago filed on 24 November 1995,
is still pending before the Senate Committee on Constitutional
Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local
legislation. However, it failed to provide any subtitle on initiative on the
Constitution, unlike in the other modes of initiative, which are specifically
provided for in Subtitle II and Subtitle III. This deliberate omission
indicates that the matter of people's initiative to amend the Constitution
was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the
Senate in 1994: "There is not a single word in that law which can be
considered as implementing [the provision on constitutional initiative].
Such implementing provisions have been obviously left to a separate law.
47
(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws
and not constitutional amendments because the latter take effect only
upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern
"the conduct of initiative on the Constitution and initiative and
referendum on national and local laws, is ultra vires insofar
as initiative on amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations for the exercise
of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution,
not to revision thereof. Extending or lifting of term limits constitutes
a revision and is, therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's
initiative; neither the COMELEC nor any other government department,
agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the
people's initiative spearheaded by PIRMA would entail expenses to the national
treasury for general re-registration of voters amounting to at least P180 million,
not to mention the millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the transcendental
importance to the public and the nation of the issues raised demands that this
petition for prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayer's and
legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in
the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further
orders, enjoining public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY
FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE
HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE
PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF
THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN
THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF
THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS
TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS
A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A
PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES
OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
48
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF
THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a "knee-
jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is
not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature
campaign to amend the Constitution or to put the movement to gather signatures
under COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735,
which governs the conduct of initiative to amend the Constitution. The
absence therein of a subtitle for such initiative is not fatal, since subtitles
are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition
in an initiative to amend the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as of the day of the
plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers
the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more specifically, only those
which lay term limits. It does not seek to reexamine or overhaul the
entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners'
estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of
the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose amendments
to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in
R.A. No. 6735 because, being national in scope, that system of initiative is
deemed included in the subtitle on National Initiative and Referendum;
and Senator Tolentino simply overlooked pertinent provisions of the law
when he claimed that nothing therein was provided for initiative on the
Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that
R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of
R.A. No. 6735 and under the Omnibus Election Code. The rule-making
power of the COMELEC to implement the provisions of R.A. No. 6735 was
in fact upheld by this Court in Subic Bay Metropolitan Authority
vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as
49
well as the latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997
by Senator Raul Roco and allowed him to file his Petition in Intervention not later
than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30
a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI),
filed a Motion for Intervention. Attached to the motion was their Petition in
Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, S.J., 18 it would involve a change from a political philosophy that
rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect
other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 A revision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of the
Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based on the
philosophy of governance, "to open up the political arena to as many as
there are Filipinos qualified to handle the demands of leadership, to
break the concentration of political and economic powers in the hands of
a few, and to promote effective proper empowerment for participation in
policy and decision-making for the common good"; hence, to remove the
term limits is to negate and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative,
particularly in a conflict-of-interest situation. Initiative is intended as a
fallback position that may be availed of by the people only if they are
dissatisfied with the performance of their elective officials, but not as a
premium for good performance. 20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments to
the Constitution. It fails to state (a) the proper parties who may file the
petition, (b) the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters nationwide
and 3% per legislative district, (f) the proper parties who may oppose or
question the veracity of the signatures, (g) the role of the COMELEC in
the verification of the signatures and the sufficiency of the petition, (h)
the appeal from any decision of the COMELEC, (I) the holding of a
plebiscite, and (g) the appropriation of funds for such people's initiative.
Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority
to legislate the procedure for a people's initiative under Section 2 of
Article XVII of the Constitution. That function exclusively pertains to
Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for
the Resolution, as the former does not set a sufficient standard for a valid
delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the
people's right to initiate constitutional amendments. This law is a consolidation of
Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and
even delivered a sponsorship speech thereon. He likewise submits that the
COMELEC was empowered under Section 20 of that law to promulgate COMELEC
Resolution No. 2300. Nevertheless, he contends that the respondent Commission is
without jurisdiction to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading contemplated
under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300.
What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the
filing of a petition for initiative which is signed by the required number of
registered voters. He also submits that the proponents of a constitutional
amendment cannot avail of the authority and resources of the COMELEC to assist
them is securing the required number of signatures, as the COMELEC's role in an
initiative on the Constitution is limited to the determination of the sufficiency of
the initiative petition and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
50
The following day, the IBP filed a Motion for Intervention to which it attached a
Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section
2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not
have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can
be proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for
Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a nonextendible period
of five days their Consolidated Comments on the aforesaid Petitions in
Intervention; and (d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to comment
thereon within a nonextendible period of five days from receipt of the said Petition
in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, was
intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules
and Regulations Governing the Conduct of Initiative on the Constitution,
and Initiative and Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution is valid,

considering the absence in the law of specific provisions on the conduct
of such initiative.
3. Whether the lifting of term limits of elective national and local officials,
as proposed in the draft "Petition for Initiative on the 1987 Constitution,"
would constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over,
a petition solely intended to obtain an order (a) fixing the time and dates
for signature gathering; (b) instructing municipal election officers to assist
Delfin's movement and volunteers in establishing signature stations; and
(c) directing or causing the publication of, inter alia, the unsigned
proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator
Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the
COMELEC should have dismissed the Delfin Petition for failure to state a sufficient
cause of action and that the Commission's failure or refusal to do so constituted
grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of
House Bill No. 21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and
IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil
action.
51
For a more logical discussion of the formulated issues, we shall first take up the
fifth issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE
COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious
attention to the fifth issue, i.e., whether it is proper for this Court to take
cognizance of this special civil action when there is a pending case before the
COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition
filed by private respondent Delfin. This being so, it becomes imperative
to stop the Comelec from proceeding any further, and under the Rules of
Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the highly divisive and
adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion
and political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is
threatened by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the
Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or
authority to entertain the petition. 26 The COMELEC made no ruling thereon
evidently because after having heard the arguments of Delfin and the oppositors at
the hearing on 12 December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December
1996, it practically gave due course to the Delfin Petition by ordering Delfin to
cause the publication of the petition, together with the attached Petition for
 52

Initiative, the signature form, and the notice of hearing; and by setting the case for
hearing. The COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the instant petition
under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the
defendant to desist from further proceedings in the action or matter
specified therein.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the
1986 Constitutional Commission, stated:

It must also be noted that intervenor Roco claims that the COMELEC has no
Without implementing legislation Section 2 cannot operate. Thus,
jurisdiction over the Delfin Petition because the said petition is not supported by
although this mode of amending the Constitution is a mode of
the required minimum number of signatures of registered voters. LABAN also
amendment which bypasses congressional action, in the last analysis it
asserts that the COMELEC gravely abused its discretion in refusing to dismiss the
still is dependent on congressional action.
Delfin Petition, which does not contain the required number of signatures. In light
of these claims, the instant case may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court. Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its implementation. Stated
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
otherwise, while the Constitution has recognized or granted that right, the people
Court may brush aside technicalities of procedure in
cannot exercise it if Congress, for whatever reason, does not provide for its
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona,
implementation.
Jr. 28

This system of initiative was originally included in Section 1 of the draft Article on
A party's standing before this Court is a procedural technicality which it
Amendment or Revision proposed by the Committee on Amendments and
may, in the exercise of its discretion, set aside in view of the importance
Transitory Provisions of the 1986 Constitutional Commission in its Committee
of issues raised. In the landmark Emergency Powers Cases, this Court
Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
brushed aside this technicality because the transcendental importance to
the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure. Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

II (a) by the National Assembly upon a vote of three-fourths of all its members; or

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON (b) by a constitutional convention; or
AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

(c) directly by the people themselves thru initiative as provided for in Article___
Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as
Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate given to us last
night, we submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. With the permission of the
Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least
ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section
2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this out. Do we
understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will not
operate?
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this matter
be left to the legislature. The Gentleman is right. In any event, as envisioned, no
53
amendment through the power of initiative can be called until after five years from
the date of the ratification of this Constitution. Therefore, the first amendment
that could be proposed through the exercise of this initiative power would be after
five years. It is reasonably expected that within that five-year period, the National
Assembly can come up with the appropriate rules governing the exercise of this
power.
FR. BERNAS. Since the matter is left to the legislature — the details on how this is to
be carried out — is it possible that, in effect, what will be presented to the people
for ratification is the work of the legislature rather than of the people? Does this
provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively,
if it fails to muster the three-fourths vote in order to constitute itself as a
constituent assembly and submit that proposal to the people for ratification
through the process of an initiative.
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal
is to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with me that in the
hierarchy of legal mandate, constituent power has primacy over all other legal
mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we
require a great deal of circumspection in the drafting and in the amendments of
the Constitution?
MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power
we have a separate article in the constitution that would specifically cover the
process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of
determining the mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision
the mechanics that would adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND — not to REVISE — the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year,
has to be separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we removed it from
the operation of Section 1 of the proposed Article on Amendment or Revision. 34
MS. AQUINO. In which case, I am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand
into a revision which contemplates a total overhaul of the Constitution. That was
the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?
54
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by
then Commissioner Hilario G. Davide, Jr., which the Committee accepted.
Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire
Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will
now read as follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF
THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed Committee Report
No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section
2 clearly showed that it was a legislative act which must implement the exercise of
the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly
confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution.
Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment
on line 1 refers to "amendment." Does it not cover the word "revision" as defined
by Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is
involved is an amendment to the Constitution. To amend a Constitution would
ordinarily require a proposal by the National Assembly by a vote of three-fourths;
and to call a constitutional convention would require a higher number. Moreover,
55
just to submit the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of amendment
must be made more rigorous and difficult than probably initiating an ordinary
legislation or putting an end to a law proposed by the National Assembly by way of
a referendum. I cannot agree to reducing the requirement approved by the
Committee on the Legislative because it would require another voting by the
Committee, and the voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an amendment, when the
Commission shall take up the Article on the Legislative or on the National Assembly
on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments,
and the final version, which the Commission approved by a vote of 31 in favor and
3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY
THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved
on second reading on 9 July 1986. 41Thereafter, upon his motion for
reconsideration, Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was withdrawn. In view
thereof, the Article was again approved on Second and Third Readings on
1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be
amended by changing "percent" to "per centum" and "thereof" to "therein" and
deleting the phrase "by law" in the second paragraph so that said paragraph
reads: The Congress 43 shall provide for the implementation of the exercise of this
right. 44 This amendment was approved and is the text of the present second
paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right?
Those who answer the question in the affirmative, like the private respondents and
intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence
or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of this
right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to
provide for the rules implementing the exercise of the right. The "rules"
means "the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was
prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No.
497, 47 which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well as with
initiative and referendum under Section 3 of Article X (Local Government) and
initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No.
17 49 solely dealt with initiative and referendum concerning ordinances or
resolutions of local government units. The Bicameral Conference Committee
consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate 50 and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
56
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
"provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:
Sec. 2. Statement and Policy. — The power of the people under
a system of initiative and referendum to directly propose,
enact, approve or reject, in whole or in part, the Constitution,
laws, ordinances, or resolutions passed by any legislative body
upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed
afterthought. That word is neither germane nor relevant to said section,
which exclusively relates to initiative and referendum on national laws
and local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on
the Constitution is confined only to proposals to AMEND. The people are
not accorded the power to "directly propose, enact, approve, or reject, in
whole or in part, the Constitution" through the system of initiative. They
can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was
lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of
policy on local initiative and referendum and appropriately used the phrases
"propose and enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems
of initiative, and that Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative, the Act does not
provide for the contents of a petition for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed law sought
to be enacted, approved or rejected, amended or repealed, as the case may be. It
does not include, as among the contents of the petition, the provisions of the

Constitution sought to be amended, in the case of initiative on the Constitution.
Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or
rejected, amended or repealed" only strengthens the conclusion that
Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the latter
simply means that the main thrust of the Act is initiative and referendum on
national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy
of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and
57
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involved, but
on its nature and character. It is "national initiative," if what is proposed to be
adopted or enacted is a national law, or a law which only Congress can pass. It is
"local initiative" if what is proposed to be adopted or enacted is a law, ordinance,
or resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can pass. This
classification of initiative into national and local is actually based on Section 3 of
the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms —
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments
to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a
subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate.
Provisions not germane to the subtitle on National Initiative and Referendum are
placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved
by the majority of the votes cast in the plebiscite shall become
effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by
majority of the votes cast in an election called for the purpose
shall become effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with
the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. — Any duly accredited people's
organization, as defined by law, may file a petition for indirect
initiative with the House of Representatives, and other
legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the petition for
initiative or referendum, which could be petitions for both national and
local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local
Initiative and Referendum is misplaced, 54 since the provision therein applies to
both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act shall prevent
or preclude the proper courts from declaring null and void any
proposition approved pursuant to this Act for violation of the
Constitution or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and
local legislation thereby giving them special attention, it failed, rather intentionally,
to do so on the system of initiative on amendments to the Constitution. Anent the
initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the
contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of
votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
58
(e) The publication of the approved proposition in the Official Gazette or in a
newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters
for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have
been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes
it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign the
petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to
the system of initiative on amendments to the Constitution by merely paying it a
reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive
matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions
to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article
VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of legislative
authority under no. 5 above. However, in every case of permissible delegation,
59
there must be a showing that the delegation itself is valid. It is valid only if the law
(a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable — to which the delegate must conform
in the performance of his functions. 61 A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative
command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation.
The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO
THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations
referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient standard"
tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments,
or that it has validly vested upon the COMELEC the power of subordinate
legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in entertaining the Delfin
Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of
the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition
does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the
required signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing.
The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of the
petition; 63 (2) to issue through its Election Records and Statistics Office a certificate
on the total number of registered voters in each legislative district; 64 (3) to assist,
through its election registrars, in the establishment of signature stations; 65 and (4)
to verify, through its election registrars, the signatures on the basis of the registry
list of voters, voters' affidavits, and voters' identification cards used in the
immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by
the COMELEC. The respondent Commission must have known that the petition
does not fall under any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did not assign to the
petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper,
which should not have been dignified by the Order of 6 December 1996, the
hearing on 12 December 1996, and the order directing Delfin and the oppositors to
file their memoranda or oppositions. In so dignifying it, the COMELEC acted
without jurisdiction or with grave abuse of discretion and merely wasted its time,
energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of elective national and local officials is an amendment to, and
not a revision of, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
60
amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and
blood, energy and strength. Congress should not tarry any longer in complying with
the constitutional mandate to provide for the implementation of the right of the
people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standard
for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN
petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent
as against the Commission on Elections, but is LIFTED as against private
respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
SANTIAGO vs. COMELEC
GR No 127325 19 March 1997
 61

FACTS: implementation of the exercise of the said right. It exerted utmost diligence and
care in providing for the details in the implementation of initiative and referendum
On 6 December 1996, Atty. Jesus S. Delfin filed with public COMELEC a Petition to on national and local legislation but failed to do so on the system of initiative on
Amend the Constitution, to Lift Term Limits of Elective Officials, by Peoples amendments to the Constitution. It logically follows that the COMELEC cannot
Initiative wherein Delfin asked the COMELEC for an order to (1) fix the time and validly promulgate rules and regulations to implement the exercise of the right of
dates for signature gathering all over the country; (2) cause the necessary the people to directly propose amendments to the Constitution through the system
publications of said Order and the attached Petition for Initiative on the 1987 of initiative. It does not have that power under R.A. No. 6735.
Constitution and (3) Instruct Municipal Election Registrars in all Regions of the
Philippines, to assist Petitioners and volunteers, in establishing signing stations at ISSUE:
the time and on the dates designated. Delfin alleged that he intend to exercise the
power to directly propose amendments to the Constitution pursuant to Section 2, Whether or not RA 6735 was intended to include initiative on amendments to the
Article XVII of the Constitution. Petitioner contended that RA 6735 deals with constitution and if so whether the act, as worded, adequately covers such initiative.
people’s initiative to amend the Constitution and COMELEC Resolution No 2300 is a
HELD:
valid prescription of rules and regulations on the conduct of initiating an
amendment as issued under Section 20 of RA 6735. On 18 December 1996, Senator
RA 6735 is intended to include the system of initiative on amendments to the
Miriam Defensor Santiago filed action for prohibition contending that (1)
constitution but is unfortunately inadequate to cover that system. Sec 2 of Article
constitutional provision on peoples initiative to amend the Constitution can only be
17 of the Constitution provides: “Amendments to this constitution may likewise be
implemented by law to be passed by Congress, (2) RA 6735 failure to provide
directly proposed by the people through initiative upon a petition of at least twelve
subtitle to the initiative indicates that the matter of peoples initiative to amend the
per centum of the total number of registered voters, of which every legislative
Constitution was left to some future law, (3) Resolution 2300 is ultra vires since the
district must be represented by at least there per centum of the registered voters
COMELEC has no power to provide rules and regulations for the exercise of the
therein. . . The Congress shall provide for the implementation of the exercise of this
right of initiative to amend the Constitution.
right” This provision is obviously not self-executory as it needs an enabling law to
be passed by Congress. Joaquin Bernas, a member of the 1986 Con-Con stated
DECISION:
“without implementing legislation Section 2, Art 17 cannot operate. Thus, although
Petition granted. Declaring RA 6735 inadequate to cover the system of initiative on this mode of amending the constitution is a mode of amendment which bypasses
amendments to the Constitution. Declaring void those parts of Resolutions No. Congressional action in the last analysis is still dependent on Congressional action.”
2300 of the Commission on Elections prescribing rules and regulations on the Bluntly stated, the right of the people to directly propose amendments to the
conduct of initiative or amendments to the Constitution. ORDERING the Constitution through the system of inititative would remain entombed in the cold
Commission on Elections to forthwith DISMISS the DELFIN petition. niche of the constitution until Congress provides for its implementation. The
people cannot exercise such right, though constitutionally guaranteed, if Congress
Without implementing legislation Section 2 Article XVII of the Constitution cannot for whatever reason does not provide for its implementation.
operate. The right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the
Constitution until Congress provides for its implementation. Stated otherwise,
while the Constitution has recognized or granted that right, the people cannot
exercise it if Congress, for whatever reason, does not provide for its
implementation. R.A. No. 6735 did not provide full compliance for the

EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952
REGISTERED VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition
to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals,
commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section
5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters,
with each legislative district represented by at least three per centum (3%) of its
registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government. The Lambino Group
prayed that after due publication of their petition, the COMELEC should submit the
following proposition in a plebiscite for the voters' ratification:
62
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM
THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory
Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions
to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.
Commission on Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of
certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006
and to compel the COMELEC to give due course to their initiative petition. The
Lambino Group contends that the COMELEC committed grave abuse of discretion
in denying due course to their petition since Santiago is not a binding precedent.
Alternatively, the Lambino Group claims that Santiago binds only the parties to
that case, and their petition deserves cognizance as an expression of the "will of
the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not be cited
in contempt for the COMELEC's verification of signatures and for "entertaining" the
Lambino Group's petition despite the permanent injunction in Santiago. The Court
treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined
causes with the petitioners, urging the Court to grant the petition despite
the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735
and its implementing rules "as temporary devises to implement the system of
initiative."
 63

Various groups and individuals sought intervention, filing pleadings supporting or Lambino Group's glaring failure to comply with the basic requirements of the
opposing the Lambino Group's petition. The supporting intervenors10 uniformly Constitution. For following the Court's ruling in Santiago, no grave abuse of
hold the view that the COMELEC committed grave abuse of discretion in relying discretion is attributable to the Commision on Elections.
on Santiago. On the other hand, the opposing intervenors11 hold the contrary view
and maintain that Santiago is a binding precedent. The opposing intervenors also 1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
challenged (1) the Lambino Group's standing to file the petition; (2) the validity of Constitution on Direct Proposal by the People
the signature gathering and verification process; (3) the Lambino Group's
compliance with the minimum requirement for the percentage of voters
Section 2, Article XVII of the Constitution is the governing constitutional provision
supporting an initiative petition under Section 2, Article XVII of the 1987
that allows a people's initiative to propose amendments to the Constitution. This
Constitution;12 (4) the nature of the proposed changes as revisions and not mere
section states:
amendments as provided under Section 2, Article XVII of the 1987 Constitution;
and (5) the Lambino Group's compliance with the requirement in Section 10(a) of
RA 6735 limiting initiative petitions to only one subject. Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters of which
The Court heard the parties and intervenors in oral arguments on 26 September
every legislative district must be represented by at least three per
2006. After receiving the parties' memoranda, the Court considered the case
centum of the registered voters therein. x x x x (Emphasis supplied)
submitted for resolution.

The deliberations of the Constitutional Commission vividly explain the meaning of

The Issues
an amendment "directly proposed by the people through initiative upon a
petition," thus:
The petitions raise the following issues:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want
1. Whether the Lambino Group's initiative petition complies with Section 2, Article to propose a constitutional amendment. Is the draft of the proposed
XVII of the Constitution on amendments to the Constitution through a people's constitutional amendment ready to be shown to the people when they
initiative; are asked to sign?

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 MR. SUAREZ: That can be reasonably assumed, Madam President.
"incomplete, inadequate or wanting in essential terms and conditions" to
implement the initiative clause on proposals to amend the Constitution; and
MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign. Now, who prepares the draft?
3. Whether the COMELEC committed grave abuse of discretion in denying due
course to the Lambino Group's petition.
MR. SUAREZ: The people themselves, Madam President.

The Ruling of the Court

MR. RODRIGO: No, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose
There is no merit to the petition. this constitutional amendment.

The Lambino Group miserably failed to comply with the basic requirements of the MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal
Constitution for conducting a people's initiative. Thus, there is even no need to and pass it around for signature.13 (Emphasis supplied)
revisit Santiago, as the present petition warrants dismissal based alone on the

Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before"
they sign such proposal. The framers plainly stated that "before they sign there is
already a draft shown to them." The framers also "envisioned" that the people
should sign on the proposal itself because the proponents must "prepare that
proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative
upon a petition" is that the entire proposal on its face is a petition by the people.
This means two essential elements must be present. First, the people must author
and thus sign the entire proposal. No agent or representative can sign on their
behalf. Second, as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition
that contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of
signatories to the petition had seen the full text of the proposed amendments
before signing. Otherwise, it is physically impossible, given the time constraint, to
prove that every one of the millions of signatories had seen the full text of the
proposed amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's
initiative from the United States where various State constitutions incorporate an
initiative clause. In almost all States15 which allow initiative petitions, the
unbending requirement is that the people must first see the full text of the
proposed amendments before they sign to signify their assent, and that the
people must sign on an initiative petition that contains the full text of the
proposed amendments.16
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the
Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals,
declared:
64
[A] signature requirement would be meaningless if the person
supplying the signature has not first seen what it is that he or she is
signing. Further, and more importantly, loose interpretation of the
subscription requirement can pose a significant potential for fraud. A
person permitted to describe orally the contents of an initiative petition
to a potential signer, without the signer having actually examined the
petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that
might not be to the signer's liking. This danger seems particularly acute
when, in this case, the person giving the description is the drafter of the
petition, who obviously has a vested interest in seeing that it gets the
requisite signatures to qualify for the ballot.17 (Boldfacing and
underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by
initiative commonly are described in similar terms. x x x (The purpose of
the full text requirement is to provide sufficient information so that
registered voters can intelligently evaluate whether to sign the
initiative petition."); x x x (publication of full text of amended
constitutional provision required because it is "essential for the elector to
have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge.
Otherwise in many instances he would be required to vote in the dark.")
(Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of
the nature and effect of that which is proposed" and failure to do so is "deceptive
and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition
must set forth the full text of the proposed amendments. However, the
deliberations of the framers of our Constitution clearly show that the framers
intended to adopt the relevant American jurisprudence on people's initiative. In
particular, the deliberations of the Constitutional Commission explicitly reveal that
the framers intended that the people must first see the full text of the proposed
amendments before they sign, and that the people must sign on a petition
containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the
Initiative and Referendum Act that the Lambino Group invokes as valid, requires
that the people must sign the "petition x x x as signatories."

The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public
officials. The proponents are not disinterested parties who can impartially explain
the advantages and disadvantages of the proposed amendments to the people.
The proponents present favorably their proposal to the people and do not present
the arguments against their proposal. The proponents, or their supporters, often
pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of
proving that they complied with the constitutional requirements in gathering the
signatures - that the petition contained, or incorporated by attachment, the full
text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy
of the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet20 after the oral arguments of 26
September 2006 when they filed their Memorandum on 11 October 2006. The
signature sheet with this Court during the oral arguments was the signature sheet
attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce
below the signature sheet in full:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII
OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM
OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature
herein which shall form part of the petition for initiative to amend the Constitution
signifies my support for the filing thereof.
There is not a single word, phrase, or sentence of text of the Lambino Group's
proposed changes in the signature sheet. Neither does the signature sheet state
that the text of the proposed changes is attached to it. Petitioner Atty. Raul
65
Lambino admitted this during the oral arguments before this Court on 26
September 2006.
The signature sheet merely asks a question whether the people approve a shift
from the Bicameral-Presidential to the Unicameral-Parliamentary system of
government. The signature sheet does not show to the people the draft of the
proposed changes before they are asked to sign the signature sheet. Clearly, the
signature sheet is not the "petition" that the framers of the Constitution envisioned
when they formulated the initiative clause in Section 2, Article XVII of the
Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering
from February to August 2006, the Lambino Group circulated, together with the
signature sheets, printed copies of the Lambino Group's draft petition which they
later filed on 25 August 2006 with the COMELEC. When asked if his group also
circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty.
Lambino changed his answer and stated that what his group circulated was the
draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006
petition.
The Lambino Group would have this Court believe that they prepared the draft of
the 30 August 2006 amended petition almost seven months earlier in February
2006 when they started gathering signatures. Petitioner Erico B. Aumentado's
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30
August 2006 amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my
personal capacity as a registered voter, for and on behalf of the Union of
Local Authorities of the Philippines, as shown by ULAP Resolution No.
2006-02 hereto attached, and as representative of the mass of
signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the "Official Website of the Union of Local Authorities
of the Philippines"22 has posted the full text of Resolution No. 2006-02, which
provides:

RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines
(ULAP) to adopt a common stand on the approach to support the proposals of the
People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the
ULAP Joint Declaration for Constitutional Reforms signed by the members of the
ULAP and the majority coalition of the House of Representatives in Manila Hotel
sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by
Her Excellency to recommend amendments to the 1987 Constitution has submitted
its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress
which militates against the use of the expeditious form of amending the 1987
Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of
Congress to amend the Constitution as a constituent assembly, ULAP has
unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue
the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE
MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14
January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied)
66
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare
the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with
the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition
filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory
Provisions. The proposed revisions have profound impact on the Judiciary and the
National Patrimony provisions of the existing Constitution, provisions that the
Lambino Group's proposed changes do not touch. The Lambino Group's proposed
changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does
not establish that ULAP or the Lambino Group caused the circulation of the draft
petition, together with the signature sheets, six months before the filing with the
COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together with the
signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory
Provisions were inaccurately stated and failed to correctly reflect their
proposed amendments.
The Lambino Group did not allege that they were amending the petition because
the amended petition was what they had shown to the people during the February
to August 2006 signature-gathering. Instead, the Lambino Group alleged that the
petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their
proposed amendments."

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of
the draft petition together with the signature sheets. Likewise, the Lambino Group
did not allege in their present petition before this Court that they circulated printed
copies of the draft petition together with the signature sheets. The signature
sheets do not also contain any indication that the draft petition is attached to, or
circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the
Lambino Group first claimed that they circulated the "petition for initiative filed
with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not
(sic) fraud, a signer who did not read the measure attached to a
referendum petition cannot question his signature on the ground that
he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State
v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who
signed the signature sheets circulated together with the petition for
initiative filed with the COMELEC below, are presumed to have
understood the proposition contained in the petition. (Emphasis
supplied)
The Lambino Group's statement that they circulated to the people "the petition for
initiative filed with the COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not
contain the text of the proposed changes. In their Consolidated Reply, the Lambino
Group alleged that they circulated "the petition for initiative" but failed to
mention the amended petition. This contradicts what Atty. Lambino finally stated
during the oral arguments that what they circulated was the draft of the amended
petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer
who did not read the measure attached to a referendum petition cannot question
his signature on the ground that he did not understand the nature of the act." The
Lambino Group quotes an authority that cites a proposed change attached to the
petition signed by the people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition
itself.
67
Indeed, it is basic in American jurisprudence that the proposed amendment must
be incorporated with, or attached to, the initiative petition signed by the people. In
the present initiative, the Lambino Group's proposed changes were not
incorporated with, or attached to, the signature sheets. The Lambino Group's
citation of Corpus Juris Secundumpulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the
petition or amended petition they filed later with the COMELEC. The Lambino
Group are less than candid with this Court in their belated claim that they printed
and circulated, together with the signature sheets, the petition or amended
petition. Nevertheless, even assuming the Lambino Group circulated the
amended petition during the signature-gathering period, the Lambino Group
admitted circulating only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed
only 100,000 copies of the draft petition they filed more than six months later
with the COMELEC. Atty. Lambino added that he also asked other supporters to
print additional copies of the draft petition but he could not state with certainty
how many additional copies the other supporters printed. Atty. Lambino could
only assure this Court of the printing of 100,000 copies because he himself caused
the printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the
Lambino Group expressly admits that "petitioner Lambino initiated the printing
and reproduction of 100,000 copies of the petition for initiative x x x."25 This
admission binds the Lambino Group and establishes beyond any doubt that the
Lambino Group failed to show the full text of the proposed changes to the great
majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received
with certainty one copy each of the petition, assuming a 100 percent distribution
with no wastage. If Atty. Lambino and company attached one copy of the petition
to each signature sheet, only 100,000 signature sheets could have circulated with
the petition. Each signature sheet contains space for ten signatures. Assuming ten
people signed each of these 100,000 signature sheets with the attached petition,
the maximum number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible
for all or a great majority of the 6.3 million signatories to have seen the petition

before they signed the signature sheets. The inescapable conclusion is that the
Lambino Group failed to show to the 6.3 million signatories the full text of the
proposed changes. If ever, not more than one million signatories saw the petition
before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of
the proposed changes, either on the face of the signature sheets, or as attachment
with an indication in the signature sheet of such attachment. Petitioner Atty.
Lambino admitted this during the oral arguments, and this admission binds the
Lambino Group. This fact is also obvious from a mere reading of the signature
sheet. This omission is fatal. The failure to so include the text of the proposed
changes in the signature sheets renders the initiative void for non-compliance with
the constitutional requirement that the amendment must be "directly proposed by
the people through initiative upon a petition." The signature sheet is not the
"petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature
sheets did not see the full text of the proposed changes before signing. They could
not have known the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its
members, who are almost all the present members of Congress, decide
to call for new parliamentary elections. Thus, the members of the
interim Parliament will determine the expiration of their own term of
office; 27
3. Within 45 days from the ratification of the proposed changes, the
interim Parliament shall convene to propose further amendments or
revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino
Group's signature sheets. The people who signed the signature sheets had no idea
that they were proposing these amendments. These three proposed changes are
highly controversial. The people could not have inferred or divined these proposed
changes merely from a reading or rereading of the contents of the signature
sheets.
68
During the oral arguments, petitioner Atty. Lambino stated that he and his
group assured the people during the signature-gathering that the elections for
the regular Parliament would be held during the 2007 local elections if the
proposed changes were ratified before the 2007 local elections. However, the text
of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials. x x x x
(Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next" before the phrase "election of
all local government officials." This would have insured that the elections for the
regular Parliament would be held in the next local elections following the
ratification of the proposed changes. However, the absence of the word "next"
allows the interim Parliament to schedule the elections for the regular Parliament
simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their
own term of office. This allows incumbent members of the House of
Representatives to hold office beyond their current three-year term of office, and
possibly even beyond the five-year term of office of regular members of the
Parliament. Certainly, this is contrary to the representations of Atty. Lambino and
his group to the 6.3 million people who signed the signature sheets. Atty.
Lambino and his group deceived the 6.3 million signatories, and even the entire
nation.
This lucidly shows the absolute need for the people to sign an initiative petition
that contains the full text of the proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 million signatories had to rely
on the verbal representations of Atty. Lambino and his group because the

signature sheets did not contain the full text of the proposed changes. The result is
a grand deception on the 6.3 million signatories who were led to believe that the
proposed changes would require the holding in 2007 of elections for the regular
Parliament simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed
the signature sheets. The proposed changes mandate the interim Parliament to
make further amendments or revisions to the Constitution. The proposed Section
4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.
(Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a
"surplusage" and the Court and the people should simply ignore it. Far from being a
surplusage, this provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma
since they can answer only either yes or no to the entire proposition, forcing them
to sign a petition that effectively contains two propositions, one of which they may
find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v.
Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes
"logrolling," which, if our judicial responsibility is to mean anything, we
cannot permit. The very broadness of the proposed amendment
amounts to logrolling because the electorate cannot know what it is
voting on - the amendment's proponents' simplistic explanation reveals
only the tip of the iceberg. x x x x The ballot must give the electorate fair
notice of the proposed amendment being voted on. x x x x The ballot
language in the instant case fails to do that. The very broadness of the
69
proposal makes it impossible to state what it will affect and effect and
violates the requirement that proposed amendments embrace only one
subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,30 the Supreme Court of Alaska warned against "inadvertence, stealth
and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems
that the single-subject rule was enacted to prevent are exacerbated. There is a
greater danger of logrolling, or the deliberate intermingling of issues to increase
the likelihood of an initiative's passage, and there is a greater opportunity for
"inadvertence, stealth and fraud" in the enactment-by-initiative process. The
drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the initiative before
the election. More importantly, there is no process for amending or splitting the
several provisions in an initiative proposal. These difficulties clearly distinguish the
initiative from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could not have
known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or
revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
interim Parliament to amend or revise again the Constitution within 45 days from
ratification of the proposed changes, or before the May 2007 elections. In the
absence of the proposed Section 4(4), the interim Parliament has the discretion
whether to amend or revise again the Constitution. With the proposed Section
4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending
or revising again so soon the Constitution. The signature sheets do not also explain
what specific amendments or revisions the initiative proponents want the interim

Parliament to make, and why there is a need for such further amendments or
revisions. The people are again left in the dark to fathom the nature and effect of
the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the
proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended
petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions
states:
Section 4(3). Senators whose term of office ends in 2010 shall be
members of Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will
all end on 30 June 2007, three years earlier than that of half of the present
Senators. Thus, all the present members of the House will remain members of the
interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does
not schedule elections for the regular Parliament by 30 June 2010, the Prime
Minister will come only from the present members of the House of Representatives
to the exclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The
6.3 million people who signed the signature sheets could not have known that
their signatures would be used to discriminate against the Senators. They could
not have known that their signatures would be used to limit, after 30 June 2010,
the interim Parliament's choice of Prime Minister only to members of the existing
House of Representatives.
An initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and
can operate as a gigantic fraud on the people. That is why the Constitution
requires that an initiative must be "directly proposed by the people x x x in a
petition" - meaning that the people must sign on a petition that contains the full
text of the proposed amendments. On so vital an issue as amending the nation's
70
fundamental law, the writing of the text of the proposed amendments cannot
be hidden from the people under a general or special power of attorney to
unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments
to the Constitution. This Court trusts the wisdom of the people even if the
members of this Court do not personally know the people who sign the
petition. However, this trust emanates from a fundamental assumption: the full
text of the proposed amendment is first shown to the people before they sign the
petition, not after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly proposed by the people through
initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing
Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of
the Constitution and not to its revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions to the Constitution.
Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the
Constitution. The first mode is through Congress upon three-fourths vote of all its

Members. The second mode is through a constitutional convention. The third
mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article
XVII, referring to the third mode, applies only to "[A]mendments to this
Constitution." This distinction was intentional as shown by the following
deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative. This
is now covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held,
directly propose amendments to this Constitution thru initiative upon
petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report
No. 7. This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments
this year, has to be separated from the traditional modes of amending
the Constitution as embodied in Section 1. The committee members felt
that this system of initiative should be limited to amendments to the
Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the
proposed Article on Amendment or Revision. x x x x
MS. AQUINO: [I] am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in terms of realigning
Section 2 as another subparagraph (c) of Section 1, instead of setting it
up as another separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
71
should not expand into a revision which contemplates a total overhaul
of the Constitution. That was the sense that was conveyed by the
Committee.
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas, the process of initiation to amend, which
is given to the public, would only apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the
Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
MR. MAAMBONG: My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote, a clear distinction between "amendment" and "revision" of the
Constitution. The framers intended, and wrote, that only Congress or a
constitutional convention may propose revisions to the Constitution. The
framers intended, and wrote, that a people's initiative may propose only
amendments to the Constitution. Where the intent and language of the
Constitution clearly withhold from the people the power to propose revisions to
the Constitution, the people cannot propose revisions even as they are empowered
to propose amendments.
This has been the consistent ruling of state supreme courts in the United States.
Thus, in McFadden v. Jordan,32the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the
Constitution x x x applies only to the proposing and the adopting or

rejecting of 'laws and amendments to the Constitution' and does not
purport to extend to a constitutional revision. x x x x It is thus clear that
a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a
convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure (hereinafter
termed 'the measure') now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would
be effected, then the measure may not properly be submitted to the
electorate until and unless it is first agreed upon by a constitutional
convention, and the writ sought by petitioner should issue. x x x x
(Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in
which it may be amended or revised, it can be altered by those who favor
amendments, revision, or other change only through the use of one of
the specified means. The constitution itself recognizes that there is a
difference between an amendment and a revision; and it is obvious from
an examination of the measure here in question that it is not an
amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on
the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x x
x and submitted to the 1963 Legislative Assembly. It failed to receive in
the Assembly the two-third's majority vote of both houses required by
Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the
present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as
can be submitted to the people through the initiative. If a revision, it is
subject to the requirements of Article XVII, Section 2(1); if a new
constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. x x x x
72
Similarly, in this jurisdiction there can be no dispute that a people's initiative can
only propose amendments to the Constitution since the Constitution itself limits
initiatives to amendments. There can be no deviation from the constitutionally
prescribed modes of revising the Constitution. A popular clamor, even one backed
by 6.3 million signatures, cannot justify a deviation from the specific modes
prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or
amended in the manner prescribed by the instrument itself, and that
any attempt to revise a constitution in a manner other than the one
provided in the instrument is almost invariably treated as extra-
constitutional and revolutionary. x x x x "While it is universally conceded
that the people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in doing so,
act in an orderly manner and according to the settled principles of
constitutional law. And where the people, in adopting a constitution,
have prescribed the method by which the people may alter or amend it,
an attempt to change the fundamental law in violation of the self-
imposed restrictions, is unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution,
cannot shirk from its solemn oath and duty to insure compliance with the clear
command of the Constitution ― that a people's initiative may only amend, never
revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision,
then the present petition should be dismissed for being outside the scope of
Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision
of a constitution. One of the earliest cases that recognized the distinction described
the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision
indicate the will of the people that the underlying principles upon which
it rests, as well as the substantial entirety of the instrument, shall be of

a like permanent and abiding nature. On the other hand, the significance
of the term "amendment" implies such an addition or change within the
lines of the original instrument as will effect an improvement, or better
carry out the purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the system of checks-and-
balances. There is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of the
constitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally
affects only the specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test:
the quantitative test and the qualitative test. The quantitative test asks whether
the proposed change is "so extensive in its provisions as to change directly the
'substantial entirety' of the constitution by the deletion or alteration of numerous
existing provisions."36 The court examines only the number of provisions affected
and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in
the constitution. The main inquiry is whether the change will "accomplish such far
reaching changes in the nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of government is a
proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental
plan" includes "change in its fundamental framework or the fundamental powers
of its Branches."38 A change in the nature of the basic governmental plan also
includes changes that "jeopardize the traditional form of government and the
system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is
a revision and not merely an amendment. Quantitatively, the Lambino Group's
proposed changes overhaul two articles - Article VI on the Legislature and Article
VII on the Executive - affecting a total of 105 provisions in the entire
Constitution.40Qualitatively, the proposed changes alter substantially the basic plan
of government, from presidential to parliamentary, and from a bicameral to a
unicameral legislature.
73
A change in the structure of government is a revision of the Constitution, as when
the three great co-equal branches of government in the present Constitution are
reduced into two. This alters the separation of powers in the Constitution. A shift
from the present Bicameral-Presidential system to a Unicameral-Parliamentary
system is a revision of the Constitution. Merging the legislative and executive
branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power
alters the separation of powers and thus constitutes a revision of the Constitution.
Likewise, the abolition alone of one chamber of Congress alters the system of
checks-and-balances within the legislature and constitutes a revision of the
Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential
to a Unicameral-Parliamentary system, involving the abolition of the Office of the
President and the abolition of one chamber of Congress, is beyond doubt a
revision, not a mere amendment. On the face alone of the Lambino Group's
proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable
provisions. The guiding original intention of an amendment is to improve specific
parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a switch from
the presidential system to a parliamentary system would be a revision because of
its over-all impact on the entire constitutional structure. So would a switch from
a bicameral system to a unicameral system be because of its effect on other
important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida
State constitution to shift from a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and unauthorized where [the]
proposed amendment would x x x affect several other provisions of [the]
Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not only
many other provisions of the Constitution but provides for a change in
the form of the legislative branch of government, which has been in
existence in the United States Congress and in all of the states of the
nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only
radically change the whole pattern of government in this state and tear
apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
We conclude with the observation that if such proposed amendment
were adopted by the people at the General Election and if the Legislature
at its next session should fail to submit further amendments to revise and
clarify the numerous inconsistencies and conflicts which would result, or
if after submission of appropriate amendments the people should refuse
to adopt them, simple chaos would prevail in the government of this
State. The same result would obtain from an amendment, for instance, of
Section 1 of Article V, to provide for only a Supreme Court and Circuit
Courts-and there could be other examples too numerous to detail. These
examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and
women and many sessions of the Legislature in bringing about the
Constitution of 1968 was to eliminate inconsistencies and conflicts and to
give the State a workable, accordant, homogenous and up-to-date
document. All of this could disappear very quickly if we were to hold that
it could be amended in the manner proposed in the initiative petition
here.43(Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive
department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions
of the Constitution would be affected based on the count of Associate Justice
74
Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative
seeks far more radical changes in the structure of government than the initiative
in Adams.
The Lambino Group theorizes that the difference between "amendment" and
"revision" is only one of procedure, not of substance. The Lambino Group posits
that when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative
body work full-time on the changes. However, the same substantive changes,
when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation,
profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional
provisions expressly provide for both "amendment" and "revision" when
it speaks of legislators and constitutional delegates, while the same
provisions expressly provide only for "amendment" when it speaks of the
people. It would seem that the apparent distinction is based on the
actual experience of the people, that on one hand the common people in
general are not expected to work full-time on the matter of correcting
the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional
convention delegates are expected to work full-time on the same matter
because that is their occupation, profession or vocation. Thus, the
difference between the words "revision" and "amendment" pertain
only to the process or procedure of coming up with the corrections, for
purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and
"revision" cannot reasonably be in the substance or extent of the
correction. x x x x (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention
had drafted the same proposed changes that the Lambino Group wrote in the
present initiative, the changes would constitute a revision of the
Constitution. Thus, the Lambino Group concedes that the proposed changes in the
present initiative constitute a revision if Congress or a constitutional convention
had drafted the changes. However, since the Lambino Group as private individuals

drafted the proposed changes, the changes are merely amendments to the
Constitution. The Lambino Group trivializes the serious matter of changing the
fundamental law of the land.
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Group's theory. Where the intent of the
framers and the language of the Constitution are clear and plainly stated, courts do
not deviate from such categorical intent and language.45 Any theory espousing a
construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of
government established in the Constitution. Such a theory, devoid of any
jurisprudential mooring and inviting inconsistencies in the Constitution, only
exposes the flimsiness of the Lambino Group's position. Any theory advocating that
a proposed change involving a radical structural change in government does not
constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v.
Keisling,46 the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to
the constitution proposed by initiative. His theory is that Article XVII,
section 2 merely provides a procedure by which the legislature can
propose a revision of the constitution, but it does not affect proposed
revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale
change to the constitution that cannot be enacted through the initiative
process. They assert that the distinction between amendment and
revision is determined by reviewing the scope and subject matter of the
proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure
proposes far reaching changes outside the lines of the original
instrument, including profound impacts on existing fundamental rights
and radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot
measure "will refashion the most basic principles of Oregon
constitutional law," the trial court correctly held that it violated Article
XVII, section 2, and cannot appear on the ballot without the prior
approval of the legislature.
75
We first address Mabon's argument that Article XVII, section 2(1), does
not prohibit revisions instituted by initiative. In Holmes v. Appling, x x
x, the Supreme Court concluded that a revision of the constitution may
not be accomplished by initiative, because of the provisions of Article
XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the
use of the initiative as a means of amending the Oregon Constitution, but
it contains no similar sanction for its use as a means of revising the
constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It
is the only section of the constitution which provides the means for
constitutional revision and it excludes the idea that an individual, through
the initiative, may place such a measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2,
does not apply to constitutional revisions proposed by initiative.
(Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the
express intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the
spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end
of the red spectrum where revision begins. The present initiative seeks a radical
overhaul of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in several
sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be
considered an amendment and not a revision. For example, a change reducing the
voting age from 18 years to 15 years47 is an amendment and not a revision.
Similarly, a change reducing Filipino ownership of mass media companies from 100
percent to 60 percent is an amendment and not a revision.48 Also, a change

requiring a college degree as an additional qualification for election to the
Presidency is an amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles
of the Constitution other than the specific provision being amended. These changes
do not also affect the structure of government or the system of checks-and-
balances among or within the three branches. These three examples are located at
the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a
revision. A change in a single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the substitution of the word
"republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the
Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of
checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to
undertake a revision. A revision requires harmonizing not only several provisions,
but also the altered principles with those that remain unaltered. Thus,
constitutions normally authorize deliberative bodies like constituent assemblies or
constitutional conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative
bodies or recorded proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:
Section 2. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of
Article VI of the 1987 Constitution which shall hereby be amended and
Sections 18 and 24 which shall be deleted, all other Sections of Article VI
are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary
system of government, in which case, they shall be amended to
76
conform with a unicameral parliamentary form of government; x x x x
(Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails. This rule also applies to
construction of constitutions. However, the Lambino Group's draft of Section 2 of
the Transitory Provisions turns on its head this rule of construction by stating that
in case of such irreconcilable inconsistency, the earlier provision "shall be
amended to conform with a unicameral parliamentary form of government." The
effect is to freeze the two irreconcilable provisions until the earlier one "shall be
amended," which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty.
Lambino readily conceded during the oral arguments that the requirement of a
future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the
rule of statutory construction so that the later provision automatically prevails in
case of irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
Transitory Provisions is not between a provision in Article VI of the 1987
Constitution and a provision in the proposed changes. The inconsistency is
between a provision in Article VI of the 1987 Constitution and the "Parliamentary
system of government," and the inconsistency shall be resolved in favor of a
"unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino
Group's proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New
Zealand models, which are among the few countries with unicameral parliaments?
The proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government ― the British, French, Spanish, German,
Italian, Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature sheets realize
that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand
parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of
the Constitution but only for amendments. A shift from the present Bicameral-
Presidential to a Unicameral-Parliamentary system requires harmonizing several
provisions in many articles of the Constitution. Revision of the Constitution through
a people's initiative will only result in gross absurdities in the Constitution.

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a
revision and not an amendment. Thus, the present initiative is void and
unconstitutional because it violates Section 2, Article XVII of the Constitution
limiting the scope of a people's initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and
scope of a people's initiative to amend the Constitution. There is no need to revisit
this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to cover the system of initiative to
amend the Constitution. An affirmation or reversal of Santiago will not change the
outcome of the present petition. Thus, this Court must decline to
revisit Santiago which effectively ruled that RA 6735 does not comply with the
requirements of the Constitution to implement the initiative clause on
amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if
the case before the Court can be resolved on some other grounds. Such avoidance
is a logical consequence of the well-settled doctrine that courts will not pass upon
the constitutionality of a statute if the case can be resolved on some other
grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
provision on initiatives to amend the Constitution, this will not change the result
here because the present petition violates Section 2, Article XVII of the
Constitution. To be a valid initiative, the present initiative must first comply with
Section 2, Article XVII of the Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires
that the "petition for an initiative on the 1987 Constitution must have at least
twelve per centum (12%) of the total number of registered voters as signatories."
Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as
signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino,
Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado,
77
Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with"
the 6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the
COMELEC did not even comply with the basic requirement of RA 6735 that the
Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735
stating, "No petition embracing more than one (1) subject shall be submitted to
the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions,
mandating the interim Parliament to propose further amendments or revisions to
the Constitution, is a subject matter totally unrelated to the shift in the form of
government. Since the present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even
if RA 6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the
Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely
followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone,
the present petition warrants outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of
discretion could be attributed to the public respondent COMELEC in
dismissing the petition filed by PIRMA therein, it appearing that it only
complied with the dispositions in the Decisions of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its Resolution of June 10,
1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect
and obedience of all the citizens of this nation. No one can trivialize the
Constitution by cavalierly amending or revising it in blatant violation of the clearly
specified modes of amendment and revision laid down in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of
the day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group
that comes will demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur well for the
rule of law in this country.
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the
total votes cast53 − approved our Constitution in a national plebiscite held on 11
February 1987. That approval is the unmistakable voice of the people, the full
expression of the people's sovereign will. That approval included the prescribed
modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by
the Lambino Group, can change our Constitution contrary to the specific modes
that the people, in their sovereign capacity, prescribed when they ratified the
Constitution. The alternative is an extra-constitutional change, which
means subverting the people's sovereign will and discarding the Constitution. This
is one act the Court cannot and should never do. As the ultimate guardian of the
Constitution, this Court is sworn to perform its solemn duty to defend and protect
the Constitution, which embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people
decide" cannot override the specific modes of changing the Constitution as
prescribed in the Constitution itself. Otherwise, the Constitution ― the people's
fundamental covenant that provides enduring stability to our society ― becomes
easily susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the
nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that "ULAP maintains
its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that
their "people's" initiative is an "unqualified support to the agenda" of the
incumbent President to change the Constitution. This forewarns the Court to be
wary of incantations of "people's voice" or "sovereign will" in the present initiative.
78
This Court cannot betray its primordial duty to defend and protect the Constitution.
The Constitution, which embodies the people's sovereign will, is the bible of this
Court. This Court exists to defend and protect the Constitution. To allow this
constitutionally infirm initiative, propelled by deceptively gathered signatures, to
alter basic principles in the Constitution is to allow a desecration of the
Constitution. To allow such alteration and desecration is to lose this Court's raison
d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
LAMBINO vs. COMELEC
G.R. No. 174153 October 25, 2006
FACTS:
On 25 August 2006, Lambino et al filed a petition with the COMELEC to hold a
plebiscite that will ratify their initiative petition to change the 1987 Constitution
under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative
and Referendum Act.
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters,
with each legislative district represented by at least three per centum (3%) of its
registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group’s initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department) and by adding Article XVIII entitled “Transitory Provisions.”
These proposed changes will shift the present Bicameral-Presidential system to a
Unicameral-Parliamentary form of government.
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory
Provisions) of their initiative.
 79

The COMELEC denied the petition citing Santiago v. COMELEC declaring RA 6735 author and thus sign the entire proposal. No agent or representative can sign on
inadequate to implement the initiative clause on proposals to amend the their behalf. Second, as an initiative upon a petition, the proposal must be
Constitution. embodied in a petition.

ISSUES:
1. Whether the Lambino Group’s initiative petition complies with Section 2, Article
XVII of the Constitution on amendments to the Constitution through a people’s
initiative;
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is “directly proposed by the
people through initiative upon a petition” only if the people sign on a petition that
contains the full text of the proposed amendments.

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 There is no presumption that the proponents observed the constitutional
“incomplete, inadequate or wanting in essential terms and conditions” to requirements in gathering the signatures. The proponents bear the burden of
implement the initiative clause on proposals to amend the Constitution; and proving that they complied with the constitutional requirements in gathering the
signatures – that the petition contained, or incorporated by attachment, the full
HELD:
text of the proposed amendments.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
The Lambino Group did not attach to their present petition with this Court a copy
Constitution on Direct Proposal by the People
of the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet after the oral arguments of 26
Section 2, Article XVII of the Constitution is the governing constitutional provision
September 2006 when they filed their Memorandum on 11 October 2006.
that allows a people’s initiative to propose amendments to the Constitution. This
section states:
2. A Revisit of Santiago v. COMELEC is Not Necessary
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
The present petition warrants dismissal for failure to comply with the basic
people through initiative upon a petition of at least twelve per centum of the total
requirements of Section 2, Article XVII of the Constitution on the conduct and
number of registered voters of which every legislative district must be represented
scope of a people’s initiative to amend the Constitution. There is no need to revisit
by at least three per centum of the registered voters therein. x xxx (Emphasis
this Court’s ruling in Santiago declaring RA 6735 “incomplete, inadequate or
supplied)
wanting in essential terms and conditions” to cover the system of initiative to
amend the Constitution. An affirmation or reversal of Santiago will not change the
The framers of the Constitution intended that the “draft of the proposed
outcome of the present petition. Thus, this Court must decline to revisit Santiago
constitutional amendment” should be “ready and shown” to the people “before”
which effectively ruled that RA 6735 does not comply with the requirements of the
they sign such proposal. The framers plainly stated that “before they sign there is
Constitution to implement the initiative clause on amendments to the Constitution.
already a draft shown to them.” The framers also “envisioned” that the people
should sign on the proposal itself because the proponents must “prepare that
proposal and pass it around for signature.”

The essence of amendments “directly proposed by the people through initiative

upon a petition” is that the entire proposal on its face is a petition by the
people. This means two essential elements must be present. First, the people must

EN BANC
PROF. MERLIN M. MAGALLONA, G.R No. 187167
AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. Present: ROQUE,
JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF CORONA, C.J., LAW
STUDENTS, Petitioners,
- versus -
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the
maritime baselines of the Philippines as an archipelagic State.3 This law followed
the framing of the Convention on the Territorial Sea and the Contiguous Zone in
1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties
over their territorial sea, the breadth of which, however, was left undetermined.
Attempts to fill this void during the second round of negotiations in Geneva in 1960
(UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS
80
III prescribes the water-land ratio, length, and contour of baselines of archipelagic
States like the Philippines7 and sets the deadline for the filing of application for the
extended continental shelf.8 Complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan
Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as citizens, taxpayers or x x x legislators,9 as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying
the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens
the countrys waters landward of the baselines to maritime passage by all vessels
and aircrafts, undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime of
islands not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen.14 To buttress their argument of territorial
diminution, petitioners facially attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs
framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues
questioning (1) the petitions compliance with the case or controversy requirement
for judicial review grounded on petitioners alleged lack of locus standi and (2) the
propriety of the writs of certiorari and prohibition to assail the constitutionality of
RA 9522. On the merits, respondents defended RA 9522 as the countrys
compliance with the terms of UNCLOS III, preserving Philippine territory over the
KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the
countrys security, environment and economic interests or relinquish the Philippines
claim over Sabah.

Respondents also question the normative force, under international law, of
petitioners assertion that what Spain ceded to the United States under the Treaty
of Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to
assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring
this suit as citizens and (2) the writs of certiorari and prohibition are proper
remedies to test the constitutionality of RA 9522. On the merits, we find no basis to
declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and specific interest to bring
the suit, thus satisfying one of the requirements for granting citizenship
standing.17
81
The Writs of Certiorari and Prohibition Are Proper Remedies to Test the
Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents
seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of discretion
in the exercise of judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by
tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles
to test the constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of
statutes which, while having no bearing on the personal interests of the
petitioners, carry such relevance in the life of this nation that the Court inevitably
finds itself constrained to take cognizance of the case and pass upon the issues
raised, non-compliance with the letter of procedural rules notwithstanding. The
statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and
Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national
territory21 because it discards the pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in the
definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters, beyond
the territorial sea recognized at the time of the Treaty of Paris, that Spain
supposedly ceded to the United States. Petitioners argue that from the Treaty of
Paris technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.22 Petitioners theory fails to
persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones
(i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone
[24 nautical miles from the baselines], exclusive economic zone [200 nautical miles
from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS
III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the worlds oceans
and submarine areas, recognizing coastal and archipelagic States graduated
authority over a limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and continental shelf. Article
48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. The breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the
scope of the maritime space and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of sovereignty over territorial
waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77)
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA
9522 because this is the only way to draw the baselines in conformity with UNCLOS
III. The baselines cannot be drawn from the boundaries or other portions of the
82
rectangular area delineated in the Treaty of Paris, but from the outermost islands
and drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the
treatys terms to delimit maritime zones and continental shelves. Territorial claims
to land features are outside UNCLOS III, and are instead governed by the rules on
general international law.26
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area.27
Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the
Philippine archipelagic baselines results in the loss of about 15,000 square nautical
miles of territorial waters, prejudicing the livelihood of subsistence fishermen.28 A
comparison of the configuration of the baselines drawn under RA 3046 and RA
9522 and the extent of maritime space encompassed by each law, coupled with a
reading of the text of RA 9522 and its congressional deliberations, vis--vis the
Philippines obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that
RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim
over the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial
waters under RA 9522 is similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints, increased the Philippines total

maritime space (covering its internal waters, territorial sea and exclusive economic
zone) by 145,216 square nautical miles, as shown in the table below: ------
Thus, as the map below shows, the reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where there are overlapping
exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as Regime of Islands
under the Republic of the Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596
and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of
the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and
the Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago,33
such that any straight baseline loped around them from the nearest basepoint will
83
inevitably depart to an appreciable extent from the general configuration of the
archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago,
took pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if
we put them inside our baselines we might be accused of violating the provision of
international law which states: The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the archipelago. So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough
Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic baseline.
Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal,
itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila
sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para
lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it should follow the natural
configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs
limits. The need to shorten this baseline, and in addition, to optimize the location
of basepoints using current maps, became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf
in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as
amended by R.A. 5446, the baselines suffer from some technical deficiencies, to
wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length
allowed under Article 47(2) of the [UNCLOS III], which states that The length of
such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of

the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped
or deleted from the baselines system. This will enclose an additional 2,195 nautical
miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later found to be
located either inland or on water, not on low-water line and drying reefs as
prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal
as Regime[s] of Islands under the Republic of the Philippines consistent with Article
12136 of UNCLOS III manifests the Philippine States responsible observance of its
pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any naturally formed area of land, surrounded by water, which is above water at
high tide, such as portions of the KIG, qualifies under the category of regime of
islands, whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446 Retained Petitioners argument for the
invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not
repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitutions
Delineation of Internal Waters
84
As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under
UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution
hazards, in violation of the Constitution.38
Whether referred to as Philippine internal waters under Article I of the
Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as
archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well
as to their bed and subsoil, and the resources contained therein.
4. The regime of archipelagic sea lanes passage established in this Part shall not in
other respects affect the status of the archipelagic waters, including the sea lanes,
or the exercise by the archipelagic State of its sovereignty over such waters and
their air space, bed and subsoil, and the resources contained therein. (Emphasis
supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle
of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers,
may pass legislation designating routes within the archipelagic waters to regulate
innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in
UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law.44 No
modern State can validly invoke its sovereignty to absolutely forbid innocent
passage that is exercised in accordance with customary international law without
risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both
the right of innocent passage and sea lanes passage45 does not place them in
lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic States, in
exchange for their right to claim all the waters landward of their baselines,
regardless of their depth or distance from the coast, as archipelagic waters subject
to their territorial sovereignty. More importantly, the recognition of archipelagic
States archipelago and the waters enclosed by their baselines as one cohesive
entity prevents the treatment of their islands as separate islands under UNCLOS
III.46 Separate islands generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, do not embody judicially enforceable constitutional
rights x x x.49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful and
balanced ecology under Section 16 of Article II as an exception, the present petition
lacks factual basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are
not violated by RA 9522.
85
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III
creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical miles.53
UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522.54 We have looked at the relevant
provision of UNCLOS III55 and we find petitioners reading plausible. Nevertheless,
the prerogative of choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep price. Absent
an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will
find itself devoid of internationally acceptable baselines from where the breadth of
its maritime zones and continental shelf is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to the seafaring powers to freely
enter and exploit the resources in the waters and submarine areas around our
archipelago; and second, it weakens the countrys case in any international dispute
over Philippine maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago
and adjacent areas, as embodied in RA 9522, allows an internationally-recognized
delimitation of the breadth of the Philippines maritime zones and continental shelf.
RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding
its maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.

MERLIN MAGALLONA vs. SECRETARY EDUARDO ERMITA
FACTS:
In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the
Philippines was enacted – the law is also known as the Baselines Law. This law was
meant to comply with the terms of the third United Nations Convention on the Law
of the Sea (UNCLOS III), ratified by the Philippines in February 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as they
contend, among others, that the law decreased the national territory of the
Philippines hence the law is unconstitutional. Some of their particular arguments
are as follows:
a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary
treaties – this also resulted to the exclusion of our claim over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine waters as
“archipelagic” waters which, in international law, opens our waters landward of the
baselines to maritime passage by all vessels (innocent passage) and aircrafts
(overflight), undermining Philippine sovereignty and national security, contravening
the country’s nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough
Shoal (bajo de masinloc), as a “regime of islands” pursuant to UNCLOS results in the
loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.
ISSUE: Whether or not the contentions of Magallona et al are tenable.
HELD:
No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means
to acquire, or lose, territory. The treaty and the baseline law has nothing to do with
the acquisition, enlargement, or diminution of the Philippine territory. What
controls when it comes to acquisition or loss of territory is the international law
principle on occupation, accretion, cession and prescription and NOT the execution
86
of multilateral treaties on the regulations of sea-use rights or enacting statutes to
comply with the treaty’s terms to delimit maritime zones and continental shelves.
The law did not decrease the demarcation of our territory. In fact it increased it.
Under the old law amended by RA 9522 (RA 3046), we adhered with the
rectangular lines enclosing the Philippines. The area that it covered was 440,994
square nautical miles (sq. na. mi.). But under 9522, and with the inclusion of the
exclusive economic zone, the extent of our maritime was increased to 586,210 sq.
na.mi. (See image below for comparison)
If any, the baselines law is a notice to the international community of the scope of
the maritime space and submarine areas within which States parties exercise
treaty-based rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the provision of
Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty.
b. UNCLOS may term our waters as “archipelagic waters” and that we may term it
as our “internal waters”, but the bottom line is that our country exercises
sovereignty over these waters and UNCLOS itself recognizes that. However, due to
our observance of international law, we allow the exercise of others of their right
of innocent passage. No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with customary
international law without risking retaliatory measures from the international
community.
c. The classification of the KIG (or the Spratly’s), as well as the Scarborough Shoal,
as a regime of islands did not diminish our maritime area. Under UNCLOS and
under the baselines law, since they are regimes of islands, they generate their own
maritime zones – in short, they are not to be enclosed within the baselines of the
 87

main archipelago (which is the Philippine Island group). This is because if we do

that, then we will be enclosing a larger area which would already depart from the
provisions of UNCLOS – that the demarcation should follow the natural contour of
the archipelago.

Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal
through effective occupation.

NOTES:

Under UNCLOS and the baselines law, we have three levels of maritime zones
where we exercise treaty-based rights:

a. territorial waters – 12 nautical miles from the baselines; where we exercise

sovereignty

b. contiguous zone – 24 nautical miles from the baselines; jurisdiction where we

can enforce customs, fiscal, immigration, and sanitation laws (CFIS).

c. exclusive economic zone – 200 nautical miles from the baselines; where we have
the right to exploit the living and non-living resources in the exclusive economic
zone

Note: a fourth zone may be added which is the continental shelf – this is covered by
Article 77 of the UNCLOS.

MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011
Facts:
In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the
Philippines as an Archepelagic State pursuant to UNCLOS I of 9158, codifying the
sovereignty of State parties over their territorial sea. Then in 1968, it was amended
by R.A. 5446, correcting some errors in R.A. 3046 reserving the drawing of
baselines around Sabah.
In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of
1984. The requirements complied with are: to shorten one baseline, to optimize
the location of some basepoints and classify KIG and Scarborough Shoal as ‘regime
of islands’.
Petitioner now assails the constitutionality of the law for three main reasons:
1. it reduces the Philippine maritime territory under Article 1;
2. it opens the country’s waters to innocent and sea lanes passages hence
undermining our sovereignty and security; and
3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over
those territories.
Issue: Whether R.A. 9522 is constitutional?
Ruling:
1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a
codified norm that regulates conduct of States. On the other hand, RA 9522 is a
baseline law to mark out basepoints along coasts, serving as geographic starting
points to measure. it merely notices the international community of the scope of
our maritime space.
2. If passages is the issue, domestically, the legislature can enact legislation
designating routes within the archipelagic waters to regulate innocent and sea
lanes passages. but in the absence of such, international law norms operate the
fact that for archipelagic states, their waters are subject to both passages does not
88
place them in lesser footing vis a vis continental coastal states. Moreover, RIOP is a
customary international law, no modern state can invoke its sovereignty to forbid
such passage.
3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046
and in fact, it increased the Phils.’ total maritime space. Moreover, the itself
commits the Phils.’ continues claim of sovereignty and jurisdiction over KIG.
If not, it would be a breach to 2 provisions of the UNCLOS III:
Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from
the general configuration of the archipelago’.
Art 47 (2): the length of baselines shall not exceed 100 mm.
KIG and SS are far from our baselines, if we draw to include them, we’ll breach the
rules: that it should follow the natural configuration of the archipelago.
Preface
The South China Sea has, especially in contemporary times, emerged as a region of
great interest to global players, in terms of strategic and economic interests of the
competing States. As Foreign Policy puts it, “There’s no tenser set of waters in the
world than the South China Sea. For the last few years, China and its neighbors
have been bluffing, threatening, cajoling, and suing for control of its resources.”[2]
To best understand the current situation in the South China Sea from a legal point
of view, it is imperative to refer back to the judgment passed by the Arbitral
Tribunal of the Permanent Court of Arbitration last year, in response to the claims
brought by Philippines against China, primarily regarding maritime rights,
entitlements and zones in the South China Sea, as well as for the protection of the
marine life and the environment of the region, under the United Nations
Convention on the Law of the Sea, 1982.
China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’
on its official maps of the region in question; other stakeholders, however, dispute
this claim, as shown in the arbitral proceedings. As is noted:

… While it was the Philippines which brought the case, it wasn’t the only interested
party in the Asean. Three other members have claims to parts of the South China
Sea or the Spratly Islands or the Paracels that conflict with China’s expansive nine-
dash theory: Brunei, Malaysia, and Vietnam. Indonesia, Asean’s largest economy,
has continuing run-ins with Chinese fishing vessels and occasionally with the
Chinese Coast Guard in its exclusive economic zone.[3]
Now, as the Association of South East Nations (ASEAN) heads towards working on
the enforcement of this arbitration award from last year (2016), and attempting to
employ a code of conduct for the South China Sea, it becomes even more
important to look at the arbitral ruling from an objective vantage point.
Case Brief
The South China Sea Arbitration was conducted between the Republic of the
Philippines and the People’s Republic of China by the Permanent Court of
Arbitration (PCA), under the 1982 United Nations Convention on the Law of the Sea
(UNCLOS). The arbitration is related to disputes between the Parties regarding the
legal basis of maritime rights and entitlements, the status of certain geographic
features, and the lawfulness of certain actions taken by China in the South China
Sea; in particular, the following four issues, as raised by Philippines:
To resolve a dispute between the parties regarding the source of maritime rights
and entitlements in the South China Sea;
To resolve a dispute between the parties concerning the entitlements to maritime
zones that would be generated under the Convention by Scarborough Shoal and
certain maritime features in the Spratly Islands that are claimed by both the
parties;
To resolve a series of disputes concerning the lawfulness of China’s actions in the
South China Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and
preserve the marine environment, and inflicting harm on the marine environment
(through land reclamation and construction of artificial islands);
To find that China has aggravated and extended the disputes between the Parties
by restricting access to a detachment of Philippines Marines stationed at Second
Thomas Shoal.
89
While China and Philippines are both parties to the UNCLOS, China specifically
made a declaration in 2006 to exclude maritime boundary delimitation from its
acceptance of compulsory dispute settlement. In addition, China has shown
disagreement with Philippines’ decision to take the matter to arbitration and has
decided neither to agree with the decision of the Tribunal nor to participate in the
proceedings.
The Tribunal, on its end, has taken cognizance of these factors and has purported
to not deal with delimiting maritime boundaries. Furthermore, the Tribunal did not
bar the proceedings, on the basis of Article 9 of Annex VII of UNCLOS[4]. In
addition, the Tribunal also noted that despite China’s absence from the
proceedings, since it is a party to the UNCLOS, the decision of the Tribunal would,
in fact, be binding upon it, pursuant to Article 296 (1)[5] and Article 11 of Annex
VII[6].
China’s Foreign Ministry, further, stated its position with regard to the proceedings
by publishing a Position Paper in 2014[7]. It claimed that the Tribunal lacks
jurisdiction over the matter because:
The essence of the subject-matter of the arbitration is the territorial sovereignty
over the relevant maritime features in the South China Sea;
China and the Philippines have agreed, through bilateral instruments and the
Declaration on the Conduct of Parties in the South China Sea, to settle their
relevant disputes through negotiations;
Philippines’ disputes would constitute an integral part of maritime delimitation
between the two countries.
The Tribunal considered China’s Position Paper as a plea on jurisdiction, and
conducted a separate hearing on the issue of jurisdiction and admissibility.
Additionally, the Tribunal also declared that it would honour China’s declaration of
2006 and the UNCLOS and would neither delve into issues of maritime boundary
delimitation or questions of sovereignty. The Philippines also stated that it, “does
not seek in this arbitration a determination of which Party enjoys sovereignty over
the islands claimed by both of them. Nor does it request a delimitation of any
maritime boundaries.”[8]

Pursuant to this, the Tribunal issued its Award on Jurisdiction[9] in October 2015, in
which it concluded that it did indeed have jurisdiction in the case, as per
Philippines’ Final Submissions[10], and that China’s lack of participation would not
prove to be a bar to its proceedings. It, further, concluded that the treaties China
was relying on were either political in nature and not legally binding[11], or that
they did were legally binding and yet did not bar either Party from alternative
means of dispute resolution[12]. In accordance with Article 283 of the UNCLOS[13],
the Tribunal found that this requirement was met in the diplomatic
communications between the Parties and that Philippines’ initiation of proceedings
under the UNCLOS did not constitute an abuse of of process as claimed by China.
The Tribunal, proceeding with the first two submissions made by the Philippines,
considered the validity of China’s claim to historic rights in the maritime region of
the South China Sea and the ‘Nine-Dash Line’. Through a lengthy analysis of the
text and context of the Convention, in line with the principles set out in the Vienna
Convention on the Law of Treaties, the Tribunal established that the Convention
supersedes any treaties in force before its coming into force. It questioned China’s
claim to historical rights in the region, and established that China’s state practice
does not show that China had been enjoying any historical rights in the South China
Sea; rather, it was enjoying the freedom of the high seas and since it did not create
bar to other states’ usage of the same, it could not be understood as being a
historical right. Furthermore, since China’s publishing of the same in its Notes
Verbales in 2009, many states have objected to its claim as well. “The Tribunal
concludes that the Convention superseded any historic rights or other sovereign
rights or jurisdiction in excess of the limits imposed therein.”[14] However, the
Tribunal also concluded that its jurisdiction was limited to the claims of historic
rights on the maritime region and not to the land masses in the South China Sea,
i.e. if it can claim historic rights on any of the islands, then it may also be able to
claim maritime zones (as per the Convention) on the basis of these islands.
Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature
of the features in the South China Sea. It differentiates between low-tide
elevations[15], high-tide features[16] and rocks[17]. In its Award on Jurisdiction,
the Tribunal clarified that:
This is not a dispute concerning sovereignty over the features, notwithstanding any
possible question concerning whether low-tide elevations may be subjected to a
90
claim of territorial sovereignty. Nor is this a dispute concerning sea boundary
delimitation: the status of a feature as a “low-tide elevation”, “island”, or a “rock”
relates to the entitlement to maritime zones generated by that feature, not to the
delimitation of such entitlements in the event that they overlap.[18]
The Philippines put forward three categories for classifying low-tide elevations:
where a low-tide elevation is located within 12 miles of a high-tide feature[19],
where the low-tide elevation is beyond 12 miles but within the state’s exclusive
economic zone or continental shelf[20], and where the low-tide elevation is located
beyond the areas of natural jurisdiction[21].
For the purpose of identifying the nature of the features in the South China Sea,
the Tribunal relied upon satellite imagery that had been conducted on the area and
direct surveys that had been carried out, by navies or otherwise, in the area, and
relied upon maps that were sufficiently detailed. They chose a certain tidal height
to maintain uniformity across the features, and decided to rely, in cases where
there had been significant man-made changes, alterations or construction on the
features, upon maps/imagery/surveys that depicted the features as they had been
in their original form.[22]
Again the Tribunal relied upon statements previously made by China to obtain their
stance on the nature of the features, since China had neither submitted any
document to the Tribunal nor had it discussed these in its Position Paper.
The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef,
Johnson Reef, McKennan Reef and Gaven Reef (North) were all found to be high-
tide features. The Tribunal further noted that for the purposes of Article 121(3), the
high-tide features at Scarborough Shoal and the reefs were rocks that cannot
sustain human human habitation or economic life of their own and so have no
exclusive economic zone or continental shelf. The Tribunal found the same to be
true of the Spratly Islands and so concluded that China, therefore, has no
entitlement to any maritime zone in the area of Mischief Reef or Second Thomas
Shoal; they do, however, form part of the exclusive economic zone and continental
shelf of the Philippines as they lie within 200 nautical miles of the Philippines’ coast
and there are no overlapping entitlements in the area with respect to China.

On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and
Second Thomas Shoal were all found to be low-tide elevations, of which Hughes
Reef lay within 12 miles of McKennan Reef and Sin Cowe Island, Gaven Reef (South)
lay within 12 miles of Gaven Reef (North) and Namyit Island, and Subi Reef lay
within 12 miles of the high-tide feature of Sandy Cay on the reefs to the west of
Thitu.
In the issue of Chinese interference with the living and non-living resources
(primarily concerned with fishing practices in the South China Sea and oil and gas
exploration and exploitation) of the Philippines, the Tribunal considered diplomatic
statements from China to the Philippines and regulations related to the matter that
China had passed domestically. The Philippines put forward four contentions
related to living resources: China’s prevention of fishing by Philippine vessels at
Mischief Reef since 1995, and at Second Thomas Shoal since 1995, China’s revision
of the Hainan Regulation[23] and China’s moratorium on fishing in the South China
Sea in 2012[24]. The Tribunal finds that China had breached Articles 77[25] and
56[26] of the Convention through the operation of its marine surveillance vessels
(which interfered with Philippines’ oil and gas exploration) and through its
moratorium on fishing which interfered with the exclusive economic zone of the
Philippines, respectively.
The Tribunal also found China in breach of Article 58 (3)[27] of the Convention, due
to its failure to prevent fishing by Chinese flagged ships in the exclusive economic
zone of the Philippines, failing to respect the sovereign rights of the Philippines
over its fisheries in its exclusive economic zone.
Submission 10 of the Philippines related to China’s interference with Philippines’
fishing vessels and practices in the Scarborough Shoal. While both the states had
conflicting views on the situation (China believed that it was Philippines who was
causing the interference) and both claimed historic rights (Philippines distinguished
this by clarifying that it only referred to historic fishing rights) to the region, the
Tribunal opined that China was, in fact, in contravention of the Convention by
interfering with the traditional fishing practice of the Philippines in its exclusive
economic zone through the deployment of its official ships in the region. The
Tribunal also noted that this decision does not depend on the question of
sovereignty, and that the Tribunal once again refrained from commenting on the
matter.
91
Philippines’ successive contention related to China’s activities on the reefs in the
South China Sea, with regards the practices it had adopted for the purpose of large-
scale construction and reclamation at seven locations in the Spratly Islands[28],
and its practices with regards to fishing[29] in the South China Sea. Philippines
claimed that China had been harming and causing damage to the marine
environment of the South China Sea through these practices and despite objections
from the surrounding states, China had not ceased its actions. It was also noted
that while some of the fishing ships were not state-appointed ships and were being
manned by non-state actors, the Chinese government had neither condemned
their actions nor made any efforts to stop them from proceeding. The Tribunal,
assisted by three independent experts on coral reef biology, expert briefs and
satellite imagery, found that China was in breach of the Convention for failing to
stop the fishing vessels from engaging in harmful harvesting practices[30] and also
for its island-building activities[31]. The Tribunal further opined that China’s
construction on Mischief Reef, without authorization from Philippines was in
violation of Philippines’ sovereign rights in its exclusive economic zone and
continental shelf and a breach of the Convention[32].
The next consideration before the Tribunal was the demeanour of China’s law
enforcement vessels at Scarborough Shoal[33] and the lawfulness of these actions.
The Philippines also raised the issue under the relevant provisions of the
Convention on the International Regulations for Preventing of Collisions at Sea,
1972 (COLREGS). The Tribunal found that China, through the actions of its law
enforcement vessels, endangered Philippine vessels and personnel and created a
serious risk of collision and found China in breach of Article 94 of the
Convention[34].
The Tribunal, in response to Submission 14 of the Philippines, opined that China
had, in the course of the proceedings of this arbitration, aggravated and extended
its disputes with Philippines, through its actions of dredging, artificial island-
building and construction activities[35].
Lastly, the Tribunal did not find it necessary to make any further declaration, owing
to the fact that both the parties are already parties to the Convention and are
already obliged to comply with it.

SECOND DIVISION
June 29, 2016
G.R. No. 206484
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), Petitioner,
vs.
SPOUSES VICENTE ABECINA and MARIA CLEOFE ABECINA, Respondents.
DECISION
BRION, J.:
This petition for review on certiorari seeks to reverse and set aside the March 20,
2013 decision of the Court of Appeals (CA) in CA-G.R. CV No. 93795 1 affirming the
decision of the Regional Trial Court (RTC) of Daet, Camarines Norte, Branch 39,
in Civil Case No. 7355.2The RTC ordered the Department of Transportation and
Communications (DOTC) to vacate the respondents' properties and to pay them
actual and moral damages.
ANTECEDENTS
Respondent spouses Vicente and Maria Cleofe Abecina (respondents/spouses
Abecina) are the registered owners of five parcels of land in Sitio Paltik, Barrio Sta.
Rosa, Jose Panganiban, Camarines Norte.
The properties are covered by Transfer Certificates of Title (TCT) Nos. T-25094, T-
25095, T-25096, T-25097, and T-25098.3
In February 1993, the DOTC awarded Digitel Telecommunications Philippines,
Inc. (Digitel) a contract for the management, operation, maintenance, and
development of a Regional Telecommunications Development
Project (RTDP) under the National Telephone Program, Phase I, Tranche 1 (NTPI-
1).4
The DOTC and Digitel subsequently entered into several Facilities Management
Agreements (FMA) for Digitel to manage, operate, maintain, and develop the RTDP
and NTPI-1 facilities comprising local telephone exchange lines in various
92
municipalities in Luzon. The FMAs were later converted into Financial Lease
Agreements (FLA) in 1995.
Later on, the municipality of Jose Panganiban, Camarines Norte, donated a one
thousand two hundred (1,200) square-meter parcel of land to the DOTC for the
implementation of the RDTP in the municipality. However, the municipality
erroneously included portions of the respondents’ property in the donation.
Pursuant to the FLAs, Digitel constructed a telephone exchange on the property
which encroached on the properties of the respondent spouses.5
Sometime in the mid-1990s, the spouses Abecina discovered Digitel’s occupation
over portions of their properties. They required Digitel to vacate their properties
and pay damages, but the latter refused, insisting that it was occupying the
property of the DOTC pursuant to their FLA.
On April 29, 2003, the respondent spouses sent a final demand letter to both the
DOTC and Digitel to vacate the premises and to pay unpaid rent/damages in the
amount of one million two hundred thousand pesos (₱1,200,000.00). Neither the
DOTC nor Digitel complied with the demand.
On September 3, 2003, the respondent spouses filed an accion
publiciana complaint 6 against the DOTC and Digitel for recovery of possession and
damages. The complaint was docketed as Civil Case No. 7355.
In its answer, the DOTC claimed immunity from suit and ownership over the
subject properties.7 Nevertheless, during the pre-trial conference, the DOTC
admitted that the Abecinas were the rightful owners of the properties and opted to
rely instead on state immunity from suit.8
On March 12, 2007, the respondent spouses and Digitel executed a Compromise
Agreement and entered into a Contract of Lease. The RTC rendered a partial
decision and approved the Compromise Agreement on March 22, 2007.9
On May 20, 2009, the RTC rendered its decision against the DOTC.10 It brushed
aside the defense of state immunity. Citing Ministerio v. Court of First
Instance11and Amigable v. Cuenca,12it held that government immunity from suit
could not be used as an instrument to perpetuate an injustice on a citizen.13
The RTC held that as the lawful owners of the properties, the respondent spouses
enjoyed the right to use and to possess them – rights that were violated by the

DOTC’s unauthorized entry, construction, and refusal to vacate. The RTC (1)
ordered the Department – as a builder in bad faith – to forfeit the improvements
and vacate the properties; and (2) awarded the spouses with ₱1,200,000.00 as
actual damages, ₱200,000.00 as moral damages, and ₱200,000.00 as exemplary
damages plus attorney’s fees and
costs of suit.
The DOTC elevated the case to the CA arguing: (1) that the RTC never acquired
jurisdiction over it due to state immunity from suit; (2) that the suit against it
should have been dismissed after the spouses Abecina and Digitel executed a
compromise agreement; and (3) that the RTC erred in awarding actual, moral, and
exemplary damages against it.14 The appeal was docketed as CA-G.R. CV No.
93795.
On March 20, 2013, the CA affirmed the RTC’s decision but deleted the award of
exemplary damages. The CA upheld the RTC’s jurisdiction over cases for accion
publiciana where the assessed value exceeds ₱20,000.00.15 It likewise denied the
DOTC’s claim of state immunity from suit, reasoning that the DOTC removed its
cloak of immunity after entering into a proprietary contract – the Financial Lease
Agreement with Digitel.16 It also adopted the RTC’s position that state immunity
cannot be used to defeat a valid claim for compensation arising from an unlawful
taking without the proper expropriation proceedings.17 The CA affirmed the award
of actual and moral damages due to the DOTC’s neglect to verify the perimeter of
the telephone exchange construction but found no valid justification for the award
of exemplary damages.18
On April 16, 2013, the DOTC filed the present petition for review on certiorari.
THE PARTIES’ ARGUMENTS
The DOTC asserts that its Financial Lease Agreement with Digitel was entered into
in pursuit of its governmental functions to promote and develop networks of
communication systems.19 Therefore, it cannot be interpreted as a waiver of state
immunity.
The DOTC also maintains that while it was regrettable that the construction of the
telephone exchange erroneously encroached on portions of the respondent’s
properties, the RTC erred in ordering the return of the property. 20 It argues that
while the DOTC, in good faith and in the performance of its mandate, took private
93
property without formal expropriation proceedings, the taking was nevertheless an
exercise of eminent domain.21
Citing the 2007 case of Heirs of Mateo Pidacan v. Air Transportation Office
(ATO),22the Department prays that instead of allowing recovery of the property,
the case should be remanded to the RTC for determination of just compensation.
On the other hand, the respondents counter that the state immunity cannot be
invoked to perpetrate an injustice against its citizens.23 They also maintain that
because the subject properties are titled, the DOTC is a builder in bad faith who is
deemed to have lost the improvements it introduced.24 Finally, they differentiate
their case from Heirs of Mateo Pidacan v. ATO because Pidacan originated from a
complaint for payment of the value of the property and rentals while their case
originated from a complaint for recovery of possession and damages.25
OUR RULING
We find no merit in the petition.
The State may not be sued without its consent.26 This fundamental doctrine stems
from the principle that there can be no legal right against the authority which
makes the law on which the right depends.27 This generally accepted principle of
law has been explicitly expressed in both the 197328 and the present Constitutions.
But as the principle itself implies, the doctrine of state immunity is not absolute.
The State may waive its cloak of immunity and the waiver may be made expressly
or by implication.
Over the years, the State’s participation in economic and commercial activities
gradually expanded beyond its sovereign function as regulator and
governor.1âwphi1 The evolution of the State’s activities and degree of participation
in commerce demanded a parallel evolution in the traditional rule of state
immunity. Thus, it became necessary to distinguish between the State’s sovereign
and governmental acts (jure imperii) and its private, commercial, and proprietary
acts (jure gestionis). Presently, state immunity restrictively extends only to acts jure
imperii while acts jure gestionis are considered as a waiver of immunity.29
The Philippines recognizes the vital role of information and communication in
nation building.30 As a consequence, we have adopted a policy environment that
aspires for the full development of communications infrastructure to facilitate the

flow of information into, out of, and across the country.31 To this end, the DOTC
has been mandated with the promotion, development, and regulation of
dependable and coordinated networks of communication.32
The DOTC encroached on the respondents’ properties when it constructed the local
telephone exchange in Daet, Camarines Norte. The exchange was part of the RTDP
pursuant to the National Telephone Program. We have no doubt that when the
DOTC constructed the encroaching structures and subsequently entered into the
FLA with Digitel for their maintenance, it was carrying out a sovereign function.
Therefore, we agree with the DOTC’s contention that these are acts jure
imperii that fall within the cloak of state immunity.
However, as the respondents repeatedly pointed out, this Court has long
established in Ministerio v CFI,33 Amigable v. Cuenca, 34the 2010 case Heirs of
Pidacan v. ATO, 35and more recently in Vigilar v. Aquino36that the doctrine of state
immunity cannot serve as an instrument for perpetrating an injustice to a citizen.
The Constitution identifies the limitations to the awesome and near-limitless
powers of the State. Chief among these limitations are the principles that no
person shall be deprived of life, liberty, or property without due process of law and
that private property shall not be taken for public use without just
compensation.37 These limitations are enshrined in no less than the Bill of Rights
that guarantees the citizen protection from abuse by the State.
Consequently, our laws38 require that the State’s power of eminent domain shall be
exercised through expropriation proceedings in court. Whenever private property
is taken for public use, it becomes the ministerial duty of the concerned office or
agency to initiate expropriation proceedings. By necessary implication, the filing of
a complaint for expropriation is a waiver of State immunity.
If the DOTC had correctly followed the regular procedure upon discovering that it
had encroached on the respondents’ property, it would have initiated
expropriation proceedings instead of insisting on its immunity from suit. The
petitioners would not have had to resort to filing its complaint for reconveyance.
As this Court said in Ministerio:
It is unthinkable then that precisely because there was a failure to abide by what
the law requires, the government would stand to benefit. It is just as important, if
not more so, that there be fidelity to legal norms on the part of officialdom if the
rule of law were to be maintained. It is not too much to say that when the
94
government takes any property for public use, which is conditioned upon the
payment of just compensation, to be judicially ascertained, it makes manifest
that it submits to the jurisdiction of a court. There is no thought then that the
doctrine of immunity from suit could still be appropriately invoked. 39 [emphasis
supplied]
We hold, therefore, that the Department’s entry into and taking of possession of
the respondents’ property amounted to an implied waiver of its governmental
immunity from suit.
We also find no merit in the DOTC’s contention that the RTC should not have
ordered the reconveyance of the respondent spouses’ property because the
property is being used for a vital governmental function, that is, the operation and
maintenance of a safe and efficient communication system.40
The exercise of eminent domain requires a genuine necessity to take the property
for public use and the consequent payment of just compensation. The property is
evidently being used for a public purpose. However, we also note that the
respondent spouses willingly entered into a lease agreement with Digitel for the
use of the subject properties.
If in the future the factual circumstances should change and the respondents
refuse to continue the lease, then the DOTC may initiate expropriation
proceedings. But as matters now stand, the respondents are clearly willing to lease
the property. Therefore, we find no genuine necessity for the DOTC to actually take
the property at this point.
Lastly, we find that the CA erred when it affirmed the RTC's decision without
deleting the forfeiture of the improvements made by the DOTC through Digitel.
Contrary to the RTC's findings, the DOTC was not a builder in bad faith when the
improvements were constructed. The CA itself found that the Department's
encroachment over the respondents' properties was a result of a mistaken
implementation of the donation from the municipality of Jose Panganiban.41
Good faith consists in the belief of the builder that the land he is building on is his
and [of] his ignorance of any defect or flaw in his title.42 While the DOTC later
realized its error and admitted its encroachment over the respondents' property,
there is no evidence that it acted maliciously or in bad faith when the construction
was done.

Article 52743 of the Civil Code presumes good faith. Without proof that. the
Department's mistake was made in bad faith, its construction is presumed to have
been made in good faith. Therefore, the forfeiture of the improvements in favor of
the respondent spouses is unwarranted.
WHEREFORE, we hereby DENY the petition for lack of merit. The May 20, 2009
decision of the Regional Trial Court in Civil Case No. 7355, as modified by the
March 20, 2013 decision of the Court of Appeals in CA-G.R. CV No. 93795,
is AFFIRMED with further MODIFICATION that the forfeiture of the improvements
made by the DOTC in favor of the respondents is DELETED. No costs.
SO ORDERED.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC) vs. SPS.
ABECINA
G.R. No. 206484, June 29, 2016
FACTS:
Respondent spouses Vicente and Maria CleofeAbecina (respondents/spouses
Abecina) are the registered owners of five parcels of land in SitioPaltik, Barrio Sta.
Rosa, Jose Panganiban, Camarines Norte. The properties are covered by Transfer
Certificates of Title (TCT) Nos. T-25094, T-25095, T-25096, T-25097, and T-25098.
In February 1993, the DOTC awarded Digitel Telecommunications Philippines, Inc.
(Digitel) a contract for the management, operation, maintenance, and
development of a Regional Telecommunications Development Project (RTDP)
under the National Telephone Program, Phase I, Tranche 1 (NTPI-1)
Later on, the municipality of Jose Panganiban, Camarines Norte, donated a one
thousand two hundred (1,200) square-meter parcel of land to the DOTC for the
implementation of the RDTP in the municipality. However, the municipality
erroneously included portions of the respondents' property in the donation.
Pursuant to the FLAs, Digitel constructed a telephone exchange on the property
which encroached on the properties of the respondent spouses
On April 29, 2003, the respondent spouses sent a final demand letter to both the
DOTC and Digitel to vacate the premises and to pay unpaid rent/damages in the
95
amount of one million two hundred thousand pesos (P1,200,000.00). Neither the
DOTC nor Digitel complied with the demand.
The RTC held that as the lawful owners of the properties, the respondent spouses
enjoyed the right to use and to possess them - rights that were violated by the
DOTC's unauthorized entry, construction, and refusal to vacate. The RTC ordered
the Department - as a builder in bad faith -to forfeit the improvements and vacate
the properties; and (2) awarded the spouses with P1,200,000.00 as actual
damages, P200,000.00 as moral damages, and P200,000.00 as exemplary damages
plus attorney's fees and costs of suit, The Court of Appeals affirmed the RTC’s
decision. Hence this petition.
ISSUE: Whether the DOTC’s contention that instead of allowing recovery of the
property, the case should be remanded to the RTC for determination of just
compensation has merit
RULING:
The Philippines recognizes the vital role of information and communication in
nation building.As a consequence, we have adopted a policy environment that
aspires for the full development of communications infrastructure to facilitate the
flow of information into, out of, and across the country. To this end, the DOTC has
been mandated with the promotion, development, and regulation of dependable
and coordinated networks of communication.
The DOTC encroached on the respondents' properties when it constructed the local
telephone exchange in Daet, Camarines Norte. The exchange was part of the RTDP
pursuant to the National Telephone Program. We have no doubt that when the
DOTC constructed the encroaching structures and subsequently entered the FLA
with Digitel for their maintenance, it was carrying out a sovereign function.
Therefore, we agree with the DOTC's contention that these are acts jure imperii
that fall within the cloak of state immunity.
The Constitution identifies the limitations to the awesome and near-limitless
powers of the State. Chief among these limitations are the principles that no
person shall be deprived of life, liberty, or property without due process of law and
that private property shall not be taken for public use without just
compensation.These limitations are enshrined in no less than the Bill of Rights that
 96

guarantees the citizen protection from abuse by the State. Consequently, our laws
require that the State's power of eminent domain shall be exercised through
expropriation proceedings in court. Whenever private property is taken for public
use, it becomes the ministerial duty of the concerned office or agency to initiate
expropriation proceedings. By necessary implication, the filing of a complaint for
expropriation is a waiver of State immunity.If the DOTC had correctly followed the
regular procedure upon discovering that it had encroached on the respondents'
property, it would have initiated expropriation proceedings instead of insisting on
its immunity from suit. The petitioners would not have had to resort to filing its
complaint for reconveyance.

The exercise of eminent domain requires a genuine necessity to take the property
for public use and the consequent payment of just compensation. The property is
evidently being used for a public purpose. However, we also note that the
respondent spouses willingly entered into a lease agreement with Digitel for the
use of the subject properties.If in the future, the factual circumstances should
change and the respondents refuse to continue the lease, then the DOTC may
initiate expropriation proceedings.

FIRST DIVISION
G.R. No. 161657 October 4, 2007
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
HON. VICENTE A. HIDALGO, in his capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch 37, CARMELO V. CACHERO, in his capacity as Sheriff IV,
Regional Trial Court of Manila, and TARCILA LAPERAL MENDOZA, Respondents.
DECISION
GARCIA, J.:
Via this verified petition for certiorari and prohibition under Rule 65 of the Rules of
Court, the Republic of the Philippines ("Republic," for short), thru the Office of the
Solicitor General (OSG), comes to this Court to nullify and set aside the decision
dated August 27, 2003 and other related issuances of the Regional Trial Court (RTC)
of Manila, Branch 37, in its Civil Case No. 99-94075. In directly invoking the Court’s
original jurisdiction to issue the extraordinary writs of certiorari and prohibition,
without challenge from any of the respondents, the Republic gave as justification
therefor the fact that the case involves an over TWO BILLION PESO judgment
against the State, allegedly rendered in blatant violation of the Constitution, law
and jurisprudence.
By any standard, the case indeed involves a colossal sum of money which, on the
face of the assailed decision, shall be the liability of the national government or, in
fine, the taxpayers. This consideration, juxtaposed with the constitutional and legal
questions surrounding the controversy, presents special and compelling reasons of
public interests why direct recourse to the Court should be allowed, as an
exception to the policy on hierarchy of courts.
At the core of the litigation is a 4,924.60-square meter lot once covered by Transfer
Certificate of Title (TCT) No. 118527 of the Registry of Deeds of Manila in the name
of the herein private respondent Tarcila Laperal Mendoza (Mendoza), married to
Perfecto Mendoza. The lot is situated at No. 1440 Arlegui St., San Miguel, Manila,
near the Malacañang Palace complex. On this lot, hereinafter referred to as
the Arlegui property, now stands the Presidential Guest House which was home to
two (2) former Presidents of the Republic and now appears to be used as office
building of the Office of the President.1
97
The facts:
Sometime in June 1999, Mendoza filed a suit with the RTC of Manila for
reconveyance and the corresponding declaration of nullity of a deed of sale and
title against the Republic, the Register of Deeds of Manila and one Atty. Fidel Vivar.
In her complaint, as later amended, docketed as Civil Case No. 99-94075 and
eventually raffled to Branch 35 of the court, Mendoza essentially alleged being the
owner of the disputed Arlegui property which the Republic forcibly dispossessed
her of and over which the Register of Deeds of Manila issued TCT No. 118911 in the
name of the Republic.
Answering, the Republic set up, among other affirmative defenses, the State’s
immunity from suit.
The intervening legal tussles are not essential to this narration. What is material is
that in an Order of March 17, 2000, the RTC of Manila, Branch 35, dismissed
Mendoza’s complaint. The court would also deny, in another order dated May 12,
2000, Mendoza’s omnibus motion for reconsideration. On a petition for certiorari,
however, the Court of Appeals (CA), in CA-G.R. SP No. 60749, reversed the trial
court’s assailed orders and remanded the case to the court a quo for further
proceedings.2 On appeal, this Court, in G.R. No. 155231, sustained the CA’s reversal
action.3
From Branch 35 of the trial court whose then presiding judge inhibited himself
from hearing the remanded Civil Case No. 99-94075, the case was re-raffled to
Branch 37 thereof, presided by the respondent judge.
On May 5, 2003, Mendoza filed a Motion for Leave of Court to file a Third Amended
Complaint with a copy of the intended third amended complaint thereto attached.
In the May 16, 2003 setting to hear the motion, the RTC, in open court and in the
presence of the Republic’s counsel, admitted the third amended complaint,
ordered the Republic to file its answer thereto within five (5) days from May 16,
2003 and set a date for pre-trial.
In her adverted third amended complaint for recovery and reconveyance of
the Arlegui property, Mendoza sought the declaration of nullity of a supposed
deed of sale dated July 15, 1975 which provided the instrumentation toward the
issuance of TCT No. 118911 in the name of the Republic. And aside from the
cancellation of TCT No. 118911, Mendoza also asked for the reinstatement of her
TCT No. 118527.4 In the same third amended complaint, Mendoza averred that,

since time immemorial, she and her predecessors-in-interest had been in peaceful
and adverse possession of the property as well as of the owner’s duplicate copy of
TCT No. 118527. Such possession, she added, continued "until the first week of July
1975 when a group of armed men representing themselves to be members of the
Presidential Security Group [PSG] of the then President Ferdinand E. Marcos, had
forcibly entered [her] residence and ordered [her] to turn over to them her … Copy
of TCT No. 118525 … and compelled her and the members of her household to
vacate the same …; thus, out of fear for their lives, [she] handed her Owner’s
Duplicate Certificate Copy of TCT No. 118527 and had left and/or vacated the
subject property." Mendoza further alleged the following:
1. Per verification, TCT No. 118527 had already been cancelled by virtue
of a deed of sale in favor of the Republic allegedly executed by her and
her deceased husband on July 15, 1975 and acknowledged before Fidel
Vivar which deed was annotated at the back of TCT No. 118527 under PE:
2035/T-118911 dated July 28, 1975; and
2. That the aforementioned deed of sale is fictitious as she (Mendoza)
and her husband have not executed any deed of conveyance covering the
disputed property in favor of the Republic, let alone appearing before
Fidel Vivar.
Inter alia, she prayed for the following:
4. Ordering the … Republic to pay plaintiff [Mendoza] a reasonable
compensation or rental for the use or occupancy of the subject property
in the sum of FIVE HUNDRED THOUSAND (P500,000.00) PESOS a month
with a five (5%) per cent yearly increase, plus interest thereon at the legal
rate, beginning July 1975 until it finally vacates the same;
5. Ordering the … Republic to pay plaintiff’s counsel a sum equivalent to
TWENTY FIVE (25%) PER CENT of the current value of the subject
property and/or whatever amount is recovered under the premises;
Further, plaintiff prays for such other relief, just and equitable under the
premises.
On May 21, 2003, the Republic, represented by the OSG, filed a Motion for
Extension (With Motion for Cancellation of scheduled pre-trial). In it, the Republic
manifested its inability to simply adopt its previous answer and, accordingly, asked
that it be given a period of thirty (30) days from May 21, 2003 or until June 20,
98
2003 within which to submit an Answer.5 June 20, 2003 came and went, but no
answer was filed. On July 18, 2003 and again on August 19, 2003, the OSG moved
for a 30-day extension at each instance. The filing of the last two motions for
extension proved to be an idle gesture, however, since the trial court had
meanwhile issued an order6 dated July 7, 2003 declaring the petitioner Republic as
in default and allowing the private respondent to present her evidence ex-parte.
The evidence for the private respondent, as plaintiff a quo, consisted of her
testimony denying having executed the alleged deed of sale dated July 15, 1975
which paved the way for the issuance of TCT No. 118911. According to her, said
deed is fictitious or inexistent, as evidenced by separate certifications, the first
(Exh. "E"), issued by the Register of Deeds for Manila and the second (Exh. "F"), by
the Office of Clerk of Court, RTC Manila. Exhibit "E"7states that a copy of the
supposed conveying deed cannot, despite diligent efforts of records personnel, be
located, while Exhibit "F"8 states that Fidel Vivar was not a commissioned notary
public for and in the City of Manila for the year 1975. Three other
witnesses9 testified, albeit their testimonies revolved around the appraisal and
rental values of the Arlegui property.
Eventually, the trial court rendered a judgment by default10 for Mendoza and
against the Republic. To the trial court, the Republic had veritably confiscated
Mendoza’s property, and deprived her not only of the use thereof but also denied
her of the income she could have had otherwise realized during all the years she
was illegally dispossessed of the same.
Dated August 27, 2003, the trial court’s decision dispositively reads as follows:
WHEREFORE, judgment is hereby rendered:
1. Declaring the deed of sale dated July 15, 1975, annotated at the back
of [TCT] No. 118527 as PE:2035/T-118911, as non-existent and/or
fictitious, and, therefore, null and void from the beginning;
2. Declaring that [TCT] No. 118911 of the defendant Republic of the
Philippines has no basis, thereby making it null and void from the
beginning;
3. Ordering the defendant Register of Deeds for the City of Manila to
reinstate plaintiff [Mendoza’s TCT] No. 118527;

4. Ordering the defendant Republic … to pay just compensation in the
sum of ONE HUNDRED FORTY THREE MILLION SIX HUNDRED THOUSAND
(P143,600,000.00) PESOS, plus interest at the legal rate, until the whole
amount is paid in full for the acquisition of the subject property;
5. Ordering the plaintiff, upon payment of the just compensation for the
acquisition of her property, to execute the necessary deed of conveyance
in favor of the defendant Republic …; and, on the other hand, directing
the defendant Register of Deeds, upon presentation of the said deed of
conveyance, to cancel plaintiff’s TCT No. 118527 and to issue, in lieu
thereof, a new Transfer Certificate of Title in favor of the defendant
Republic;
6. Ordering the defendant Republic … to pay the plaintiff the sum of ONE
BILLION FOUR HUNDRED EIGHTY MILLION SIX HUNDRED TWENTY SEVEN
THOUSAND SIX HUNDRED EIGHTY EIGHT (P1,480,627,688.00) PESOS,
representing the reasonable rental for the use of the subject property,
the interest thereon at the legal rate, and the opportunity cost at the rate
of three (3%) per cent per annum, commencing July 1975 continuously
up to July 30, 2003, plus an additional interest at the legal rate,
commencing from this date until the whole amount is paid in full;
7. Ordering the defendant Republic … to pay the plaintiff attorney’s fee,
in an amount equivalent to FIFTEEN (15%) PER CENT of the amount due
to the plaintiff.
With pronouncement as to the costs of suit.
SO ORDERED. (Words in bracket and emphasis added.)
Subsequently, the Republic moved for, but was denied, a new trial per order of the
trial court of October 7, 2003.11Denied also was its subsequent plea for
reconsideration.12 These twin denial orders were followed by several orders and
processes issued by the trial court on separate dates as hereunder indicated:
1. November 27, 2003 - - Certificate of Finality declaring the August 27,
2003 decision final and executory.13
99
2. December 17, 2003 - - Order denying the Notice of Appeal filed on
November 27, 2003, the same having been filed beyond the
reglementary period.14
3. December 19, 2003 - - Order15 granting the private respondent’s
motion for execution.
4. December 22, 2003 - - Writ of Execution.16
Hence, this petition for certiorari.
By Resolution17 of November 20, 2006, the case was set for oral arguments. On
January 22, 2007, when this case was called for the purpose, both parties
manifested their willingness to settle the case amicably, for which reason the Court
gave them up to February 28, 2007 to submit the compromise agreement for
approval. Following several approved extensions of the February 28, 2007 deadline,
the OSG, on August 6, 2007, manifested that it is submitting the case for resolution
on the merits owing to the inability of the parties to agree on an acceptable
compromise.
In this recourse, the petitioner urges the Court to strike down as a nullity the trial
court’s order declaring it in default and the judgment by default that followed.
Sought to be nullified, too, also on the ground that they were issued in grave abuse
of discretion amounting to lack or in excess of jurisdiction, are the orders and
processes enumerated immediately above issued after the rendition of the default
judgment.
Petitioner lists five (5) overlapping grounds for allowing its petition. It starts off by
impugning the order of default and the judgment by default. To the petitioner, the
respondent judge committed serious jurisdictional error when he proceeded to
hear the case and eventually awarded the private respondent a staggering amount
without so much as giving the petitioner the opportunity to present its defense.
Petitioner’s posture is simply without merit.
Deprivation of procedural due process is obviously the petitioner’s threshold
theme. Due process, in its procedural aspect, guarantees in the minimum the
opportunity to be heard.18 Grave abuse of discretion, however, cannot plausibly be
laid at the doorstep of the respondent judge on account of his having issued the
default order against the petitioner, then proceeding with the hearing and

eventually rendering a default judgment. For, what the respondent judge did hew
with what Section 3, Rule 9 of the Rules of Court prescribes and allows in the event
the defending party fails to seasonably file a responsive pleading. The provision
reads:
SEC. 3. Default; declaration of.- If the defending party fails to answer within the
time allowed therefor, the court shall, upon motion of the claiming party with
notice to the defending party, and proof of such failure, declare the defending
party in default. Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence ….19
While the ideal lies in avoiding orders of default,20 the policy of the law being to
have every litigated case tried on its full merits,21 the act of the respondent judge in
rendering the default judgment after an order of default was properly issued
cannot be struck down as a case of grave abuse of discretion.
The term "grave abuse of discretion," in its juridical sense, connotes capricious,
despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of
jurisdiction.22 The abuse must be of such degree as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, as where the
power is exercised in a capricious manner. The word "capricious," usually used in
tandem with "arbitrary," conveys the notion of willful and unreasoning action. 23
Under the premises, the mere issuance by the trial court of the order of default
followed by a judgment by default can easily be sustained as correct and doubtless
within its jurisdiction. Surely, a disposition directing the Republic to pay an
enormous sum without the trial court hearing its side does not, without more,
vitiate, on due procedural ground, the validity of the default judgment. The
petitioner may have indeed been deprived of such hearing, but this does not mean
that its right to due process had been violated. For, consequent to being declared
in default, the defaulting defendant is deemed to have waived his right to be heard
or to take part in the trial. The handling solicitors simply squandered the Republic’s
opportunity to be heard. But more importantly, the law itself imposes such
deprivation of the right to participate as a form of penalty against one unwilling
without justification to join issue upon the allegations tendered by the plaintiff.
And going to another point, the petitioner would ascribe jurisdictional error on the
respondent judge for denying its motion for new trial based on any or a mix of the
following factors, viz., (1) the failure to file an answer is attributable to the
100
negligence of the former handling solicitor; (2) the meritorious nature of the
petitioner’s defense; and (3) the value of the property involved.
The Court is not convinced. Even as the Court particularly notes what the trial court
had said on the matter of negligence: that all of the petitioner’s pleadings below
bear at least three signatures, that of the handling solicitor, the assistant solicitor
and the Solicitor General himself, and hence accountability should go up all the
way to the top of the totem pole of authority, the cited reasons advanced by the
petitioner for a new trial are not recognized under Section 1, Rule 37 of the Rules
of Court for such recourse.24 Withal, there is no cogent reason to disturb the denial
by the trial court of the motion for new trial and the denial of the reiterative
motion for reconsideration.
Then, too, the issuance by the trial court of the Order dated December 17,
200325 denying the petitioner’s notice of appeal after the court caused the issuance
on November 27, 2003 of a certificate of finality of its August 27, 2003 decision can
hardly be described as arbitrary, as the petitioner would have this Court believe. In
this regard, the Court takes stock of the following key events and material dates set
forth in the assailed December 17, 2003 order, supra: (a) The petitioner, thru the
OSG, received on August 29, 2003 a copy of the RTC decision in this case, hence
had up to September 13, 2003, a Saturday, within which to perfect an appeal; (b)
On September 15, 2003, a Monday, the OSG filed its motion for new trial, which
the RTC denied, the OSG receiving a copy of the order of denial on October 9, 2003;
and (c) On October 24, 2003, the OSG sought reconsideration of the order denying
the motion for new trial. The motion for reconsideration was denied per Order
dated November 25, 2003, a copy of which the OSG received on the same date.
Given the foregoing time perspective, what the trial court wrote in its
aforementioned impugned order of December 17, 2003 merits approval:
In the case at bar, it is clear that the motion for new trial filed on the fifteenth
(15th) day after the decision was received on August 29, 2003 was denied and the
moving party has only the remaining period from notice of notice of denial within
which to file a notice of appeal. xxx
Accordingly, when defendants [Republic et al.] filed their motion for new trial on
the last day of the fifteen day (15) prescribed for taking an appeal, which motion
was subsequently denied, they had one (1) day from receipt of a copy of the order
denying … new trial within which to perfect [an] appeal …. Since defendants had
received a copy of the order denying their motion for new trial on 09 October
2003, reckoned from that date, they only have one (1) day left within which to file

the notice of appeal. But instead of doing so, the defendants filed a motion for
reconsideration which was later declared by the Court as pro forma motion in the
Order dated 25 November 2003. The running of the prescriptive period, therefore,
can not be interrupted by a pro forma motion. Hence the filing of the notice of
appeal on 27 November 2007 came much too late for by then the judgment had
already become final and executory.26 (Words in bracket added; Emphasis in the
original.)
It cannot be over-emphasized at this stage that the special civil action
of certiorari is limited to resolving only errors of jurisdiction; it is not a remedy to
correct errors of judgment. Hence, the petitioner’s lament, partly covered by and
discussed under the first ground for allowing its petition, about the trial court
taking cognizance of the case notwithstanding private respondent’s claim or action
being barred by prescription and/or laches cannot be considered favorably. For, let
alone the fact that an action for the declaration of the inexistence of a contract, as
here, does not prescribe;27 that a void transfer of property can be recovered
by accion reivindicatoria;28 and that the legal fiction of indefeasibility of a Torrens
title cannot be used as a shield to perpetuate fraud,29 the trial court’s disinclination
not to appreciate in favor of the Republic the general principles of prescription or
laches constitutes, at best, errors of judgment not correctable by certiorari.
The evidence adduced below indeed adequately supports a conclusion that the
Office of the President, during the administration of then President Marcos,
wrested possession of the property in question and somehow secured a certificate
of title over it without a conveying deed having been executed to legally justify the
cancellation of the old title (TCT No. 118527) in the name of the private respondent
and the issuance of a new one (TCT No. 118911) in the name of petitioner Republic.
Accordingly, granting private respondent’s basic plea for recovery of the Arlegui
property, which was legally hers all along, and the reinstatement of her cancelled
certificate of title are legally correct as they are morally right. While not exactly
convenient because the Office of the President presently uses it for mix residence
and office purposes, restoring private respondent to her possession of the Arlegui
property is still legally and physically feasible. For what is before us, after all, is a
registered owner of a piece of land who, during the early days of the martial law
regime, lost possession thereof to the Government which appropriated the same
for some public use, but without going through the legal process of expropriation,
let alone paying such owner just compensation.
The Court cannot, however, stop with just restoring the private respondent to her
possession and ownership of her property. The restoration ought to be
complemented by some form of monetary compensation for having been unjustly
101
deprived of the beneficial use thereof, but not, however, in the varying amounts
and level fixed in the assailed decision of the trial court and set to be executed by
the equally assailed writ of execution. The Court finds the monetary award set
forth therein to be erroneous. And the error relates to basic fundamentals of law as
to constitute grave abuse of discretion.
As may be noted, private respondent fixed the assessed value of her Arlegui
property at ₱2,388,990.00. And in the prayer portion of her third amended
complaint for recovery, she asked to be restored to the possession of her property
and that the petitioner be ordered to pay her, as reasonable compensation or
rental use or occupancy thereof, the sum of ₱500,000.00 a month, or ₱6 Million a
year, with a five percent (5%) yearly increase plus interest at the legal rate
beginning July 1975. From July 1975 when the PSG allegedly took over the subject
property to July 2003, a month before the trial court rendered judgment, or a
period of 28 years, private respondent’s total rental claim would, per the OSG’s
computation, only amount to ₱371,440,426.00. In its assailed decision, however,
the trial court ordered the petitioner to pay private respondent the total amount of
over ₱1.48 Billion or the mind-boggling amount of ₱1,480,627,688.00, to be exact,
representing the reasonable rental for the property, the interest rate thereon at
the legal rate and the opportunity cost. This figure is on top of
the ₱143,600,000.00 which represents the acquisition cost of the disputed
property. All told, the trial court would have the Republic pay the total amount of
about ₱1.624 Billion, exclusive of interest, for the taking of a property with a
declared assessed value of ₱2,388,900.00. This is not to mention the award of
attorney’s fees in an amount equivalent to 15% of the amount due the private
respondent.
In doing so, the respondent judge brazenly went around the explicit command of
Rule 9, Section 3(d) of the Rules of Court30 which defines the extent of the relief
that may be awarded in a judgment by default, i.e., only so much as has been
alleged and proved. The court acts in excess of jurisdiction if it awards an amount
beyond the claim made in the complaint or beyond that proved by the
evidence.31 While a defaulted defendant may be said to be at the mercy of the trial
court, the Rules of Court and certainly the imperatives of fair play see to it that any
decision against him must be in accordance with law.32 In the abstract, this means
that the judgment must not be characterized by outrageous one-sidedness, but by
what is fair, just and equitable that always underlie the enactment of a law.
Given the above perspective, the obvious question that comes to mind is the level
of compensation which – for the use and occupancy of the Arlegui property - would
be fair to both the petitioner and the private respondent and, at the same time, be

within acceptable legal bounds. The process of balancing the interests of both
parties is not an easy one. But surely, the Arlegui property cannot possibly be
assigned, even perhaps at the present real estate business standards, a monthly
rental value of at least ₱500,000.00 or ₱6,000,000.00 a year, the amount private
respondent particularly sought and attempted to prove. This asking figure is clearly
unconscionable, if not downright ridiculous, attendant circumstances considered.
To the Court, an award of ₱20,000.00 a month for the use and occupancy of the
Arlegui property, while perhaps a little bit arbitrary, is reasonable and may be
granted pro hac viceconsidering the following hard realities which the Court takes
stock of:
1. The property is relatively small in terms of actual area and had an
assessed value of only P2,388,900.00;
2. What the martial law regime took over was not exactly an area with a
new and imposing structure, if there was any; and
3. The Arlegui property had minimal rental value during the relatively
long martial law years, given the very restrictive entry and egress
conditions prevailing at the vicinity at that time and even after.
To be sure, the grant of monetary award is not without parallel. In Alfonso v. Pasay
City,33 a case where a registered owner also lost possession of a piece of lot to a
municipality which took it for a public purposes without instituting expropriation
proceedings or paying any compensation for the lot, the Court, citing Herrera v.
Auditor General,34ordered payment of just compensation but in the form of
interest when a return of the property was no longer feasible.
The award of attorney’s fees equivalent to 15% of the amount due the private
respondent, as reduced herein, is affirmed.
The assessment of costs of suit against the petitioner is, however, nullified, costs
not being allowed against the Republic, unless otherwise provided by law.35
The assailed trial court’s issuance of the writ of execution36 against government
funds to satisfy its money judgment is also nullified. It is basic that government
funds and properties may not be seized under writs of execution or garnishment to
satisfy such judgments.37 Republic v. Palacio38 teaches that a judgment against the
State generally operates merely to liquidate and establish the plaintiff’s claim in the
102
absence of express provision; otherwise, they can not be enforced by processes of
law.
Albeit title to the Arlegui property remains in the name of the petitioner Republic,
it is actually the Office of the President which has beneficial possession of and use
over it since the 1975 takeover. Accordingly, and in accord with the elementary
sense of justice, it behooves that office to make the appropriate budgetary
arrangements towards paying private respondent what is due her under the
premises. This, to us, is the right thing to do. The imperatives of fair dealing
demand no less. And the Court would be remiss in the discharge of its duties as
dispenser of justice if it does not exhort the Office of the President to comply with
what, in law and equity, is its obligation. If the same office will undertake to pay its
obligation with reasonable dispatch or in a manner acceptable to the private
respondent, then simple justice, while perhaps delayed, will have its day. Private
respondent is in the twilight of her life, being now over 90 years of age.39 Any delay
in the implementation of this disposition would be a bitter cut.1âwphi1
WHEREFORE, the decision of the Regional Trial Court of Manila dated August 27,
2003 insofar as it nullified TCT No. 118911 of petitioner Republic of the Philippines
and ordered the Register of Deeds of Manila to reinstate private respondent Tarcila
L. Mendoza’s TCT No. 118527, or to issue her a new certificate of title is AFFIRMED.
Should it be necessary, the Register of Deeds of Manila shall execute the necessary
conveying deed to effect the reinstatement of title or the issuance of a new title to
her.
It is MODIFIED in the sense that for the use and occupancy of the Arlegui property,
petitioner Republic is ordered to pay private respondent the reasonable amount of
₱20,000.00 a month beginning July 1975 until it vacates the same and the
possession thereof restored to the private respondent, plus an additional interest
of 6% per annum on the total amount due upon the finality of this Decision until
the same is fully paid. Petitioner is further ordered to pay private respondent
attorney's fees equivalent to 15% of the amount due her under the premises.
Accordingly, a writ of certiorari is hereby ISSUED in the sense that:
1. The respondent court’s assailed decision of August 27, 2003 insofar as
it ordered the petitioner Republic of the Philippines to pay private
respondent Tarcila L. Mendoza the sum of One Billion Four Hundred
Eighty Million Six Hundred Twenty Seven Thousand Six Hundred Eighty
Eight Pesos (₱1,480,627,688.00) representing the purported rental use of
the property in question, the interest thereon and the opportunity cost at

the rate of 3% per annum plus the interest at the legal rate added
thereon is nullified. The portion assessing the petitioner Republic for
costs of suit is also declared null and void.
2. The Order of the respondent court dated December 19, 2003 for the
issuance of a writ of execution and the Writ of Execution dated
December 22, 2003 against government funds are hereby declared null
and void. Accordingly, the presiding judge of the respondent court, the
private respondent, their agents and persons acting for and in their
behalves are permanently enjoined from enforcing said writ of execution.
However, consistent with the basic tenets of justice, fairness and equity, petitioner
Republic, thru the Office of the President, is hereby strongly enjoined to take the
necessary steps, and, with reasonable dispatch, make the appropriate budgetary
arrangements to pay private respondent Tarcila L. Mendoza or her assigns the
amount adjudged due her under this disposition.
SO ORDERED.
REPUBLIC vs. HIDALGO
534 SCRA 619
FACTS:
TarcilaLaperal Mendoza filed an action for the annulment or declaration of nullity
of the title and deed of sale, reconveyance and/or
recovery of ownership and possession of property against the Republic of the
Philippines in the RTC of Manila. It is also known as the Arlegui Residence
which housed two Philippine presidents and which now holds the Office of the
Press Secretary and the News Information Bureau. The case was initially dismissed
by the presiding Judge of the Manila RTC (Branch 35) on the ground of state
immunity. The case was re-raffled to the Manila RTC (Branch 37), with
respondent Vicente A. Hidalgo as presiding Judge. In an Order, Judge Hidalgo
declared the Republic in default for failure of Solicitor
103
Gabriel Francisco Ramirez, the handling solicitor, to file the required answer within
the period prayed for in his motion for extension. It is contended
that the respondent Judge violated the Constitution and the fundamental rule
that government funds are exempt from execution or garnishment when he caused
the issuance of the writ of execution against the Republic.
PROVISION: Sec 1, Rule 37 of the Rules of Court; Rule 65 of the Rules of Court
ISSUE: Whether or not the Republic can invoke immunity from suit
HELD:
It is settled that when the State give sits consent to be sued, it does not thereby
necessarily consent to an unrestrained execution against it. Tersely put, when the
State waives its immunity, all it does, in effect, is to give the other party an
opportunity to prove, if it can, that the state has a liability.
The functions and public services rendered by the State cannot be allowed to
paralyzed or disrupted by the diversion of public funds from their legitimate
and specific objects, as appropriated by law
NOTES:Section 1.Grounds of and period for filing motion for new trial or
reconsideration. — Within the period for taking an appeal, the aggrieved party may
move the trial court to set aside the judgment or final order and grant a new trial
for one or more of the following causes materially affecting the substantial rights of
said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if
presented would probably alter the result.

Within the same period, the aggrieved party may also move for reconsideration
upon the grounds that the damages awarded are excessive, that the evidence is
insufficient to justify the decision or final order, or that the decision or final order is
contrary to law. (1a)
REPUBLIC vs. HON. VICENTE A. HIDALGO
FACTS:
Mendoza filed a suit with the RTC of Manila for reconveyance and the
corresponding declaration of nullity of a deed of sale and title against the Republic.
In her complaint Mendoza essentially alleged being the owner of the disputed
Arlegui property which the Republic forcibly dispossessed her of and over which
the Register of Deeds of Manila issued TCT No. 118911 in the name of the Republic.
The Republic set up, among other affirmative defenses, the States immunity from
suit. the RTC of Manila dismissed Mendozas complaint. In her adverted third
amended complaint for recovery and reconveyance of the Arlegui property,
Mendoza sought the declaration of nullity of a supposed deed of sale which
provided the instrumentation toward the issuance of TCT No. 118911 in the name
of the Republic. And aside from the cancellation of TCT No. 118911, Mendoza also
asked for the reinstatement of her TCT No. 118527
The trial court rendered a judgment by defaultfor Mendoza and against the
Republic. To the trial court, the Republic had veritably confiscated Mendozas
property, and deprived her not only of the use thereof but also denied her of the
income she could have had otherwise realized during all the years she was illegally
dispossessed of the same.
Petitioner urges the Court to strike down as a nullity the trial courts order declaring
it in default and the judgment by default that followed. Sought to be nullified, too,
also on the ground that they were issued in grave abuse of discretion amounting to
lack or in excess of jurisdiction, are the orders and processes enumerated
immediately above issued after the rendition of the default judgment.
It is contended that the respondent Judge violated the Constitution and
thefundamental rule that government funds areexempt from execution or
104
garnishment whenhe caused the issuance of the writ of executionagainst the
Republic
ISSUE: WON the Republic can invoke immunity from suit?
HELD:
It is settled that when the State gives its consent to be sued, it does not there by
necessarily consent to an unrestrained execution against it. Tersely put, when the
State waives its immunity, all it does, in effect,is to give the other party an
opportunity to prove, if it can, that the state has a liability.T he functions and public
services rendered by the State cannot be allowed to paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects, as appropriated
by law
Accordingly, granting private respondents basic plea for recovery of the Arlegui
property, which was legally hers all along, and the reinstatement of her cancelled
certificate of title are legally correct as they are morally right. While not exactly
convenient because the Office of the President presently uses it for mix residence
and office purposes, restoring private respondent to her possession of the Arlegui
property is still legally and physically feasible. For what is before us, after all, is a
registered owner of a piece of land who, during the early days of the martial law
regime, lost possession thereof to the Government which appropriated the same
for some public use, but without going through the legal process of expropriation,
let alone paying such owner just compensation.
The Court finds the monetary award set forth therein to be erroneous. And the
error relates to basic fundamentals of law as to constitute grave abuse of
discretion.
But surely, the Arlegui property cannot possibly be assigned, even perhaps at the
present real estate business standards, a monthly rental value of at least
P500,000.00 or P6,000,000.00 a year, the amount private respondent particularly
sought and attempted to prove. This asking figure is clearly unconscionable, if not
downright ridiculous, attendant circumstances considered. To the Court, an award
of P20,000.00 a month for the use and occupancy of the Arlegui property, while
perhaps a little bit arbitrary, is reasonable and may be granted pro hac vice

FIRST DIVISION
G.R. No. 171182 August 23, 2012
UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, RAUL P. DE GUZMAN, RUBEN
P. ASPIRAS, EMMANUEL P. BELLO, WILFREDO P. DAVID, CASIANO S. ABRIGO, and
JOSEFINA R. LICUANAN,Petitioners,
vs.
HON. AGUSTIN S. DIZON, his capacity as Presiding Judge of the Regional Trial
Court of Quezon City, Branch 80, STERN BUILDERS, INC., and SERVILLANO DELA
CRUZ, Respondents.
DECISION
BERSAMIN, J.:
Trial judges should not immediately issue writs of execution or garnishment against
the Government or any of its subdivisions, agencies and instrumentalities to
enforce money judgments.1 They should bear in mind that the primary jurisdiction
to examine, audit and settle all claims of any sort due from the Government or any
of its subdivisions, agencies and instrumentalities pertains to the Commission on
Audit (COA) pursuant to Presidential Decree No. 1445 (Government Auditing Code
of the Philippines).
The Case
On appeal by the University of the Philippines and its then incumbent officials
(collectively, the UP) is the decision promulgated on September 16, 2005,2 whereby
the Court of Appeals (CA) upheld the order of the Regional Trial Court (RTC),
Branch 80, in Quezon City that directed the garnishment of public funds amounting
to ₱ 16,370,191.74 belonging to the UP to satisfy the writ of execution issued to
enforce the already final and executory judgment against the UP.
Antecedents
On August 30, 1990, the UP, through its then President Jose V. Abueva, entered
into a General Construction Agreement with respondent Stern Builders Corporation
(Stern Builders), represented by its President and General Manager Servillano dela
Cruz, for the construction of the extension building and the renovation of the
105
College of Arts and Sciences Building in the campus of the University of the
Philippines in Los Baños (UPLB).3
In the course of the implementation of the contract, Stern Builders submitted three
progress billings corresponding to the work accomplished, but the UP paid only two
of the billings. The third billing worth ₱ 273,729.47 was not paid due to its
disallowance by the Commission on Audit (COA). Despite the lifting of the
disallowance, the UP failed to pay the billing, prompting Stern Builders and dela
Cruz to sue the UP and its co-respondent officials to collect the unpaid billing and
to recover various damages. The suit, entitled Stern Builders Corporation and
Servillano R. Dela Cruz v. University of the Philippines Systems, Jose V. Abueva, Raul
P. de Guzman, Ruben P. Aspiras, Emmanuel P. Bello, Wilfredo P. David, Casiano S.
Abrigo, and Josefina R. Licuanan, was docketed as Civil Case No. Q-93-14971 of the
Regional Trial Court in Quezon City (RTC).4
After trial, on November 28, 2001, the RTC rendered its decision in favor of the
plaintiffs,5 viz:
Wherefore, in the light of the foregoing, judgment is hereby rendered in favor of
the plaintiff and against the defendants ordering the latter to pay plaintiff, jointly
and severally, the following, to wit:
1. ₱ 503,462.74 amount of the third billing, additional accomplished work
and retention money
2. ₱ 5,716,729.00 in actual damages
3. ₱ 10,000,000.00 in moral damages
4. ₱ 150,000.00 and ₱ 1,500.00 per appearance as attorney’s fees; and
5. Costs of suit.
SO ORDERED.
Following the RTC’s denial of its motion for reconsideration on May 7, 2002,6 the
UP filed a notice of appeal on June 3, 2002.7 Stern Builders and dela Cruz opposed
the notice of appeal on the ground of its filing being belated, and moved for the
execution of the decision. The UP countered that the notice of appeal was filed

within the reglementary period because the UP’s Office of Legal Affairs (OLS) in
Diliman, Quezon City received the order of denial only on May 31, 2002. On
September 26, 2002, the RTC denied due course to the notice of appeal for having
been filed out of time and granted the private respondents’ motion for execution.8
The RTC issued the writ of execution on October 4, 2002,9 and the sheriff of the RTC
served the writ of execution and notice of demand upon the UP, through its
counsel, on October 9, 2002.10 The UP filed an urgent motion to reconsider the
order dated September 26, 2002, to quash the writ of execution dated October 4,
2002, and to restrain the proceedings.11 However, the RTC denied the urgent
motion on April 1, 2003.12
On June 24, 2003, the UP assailed the denial of due course to its appeal through a
petition for certiorari in the Court of Appeals (CA), docketed as CA-G.R. No.
77395.13
On February 24, 2004, the CA dismissed the petition for certiorari upon finding that
the UP’s notice of appeal had been filed late,14 stating:
Records clearly show that petitioners received a copy of the Decision dated
November 28, 2001 and January 7, 2002, thus, they had until January 22, 2002
within which to file their appeal. On January 16, 2002 or after the lapse of nine (9)
days, petitioners through their counsel Atty. Nolasco filed a Motion for
Reconsideration of the aforesaid decision, hence, pursuant to the rules, petitioners
still had six (6) remaining days to file their appeal. As admitted by the petitioners in
their petition (Rollo, p. 25), Atty. Nolasco received a copy of the Order denying
their motion for reconsideration on May 17, 2002, thus, petitioners still has until
May 23, 2002 (the remaining six (6) days) within which to file their appeal.
Obviously, petitioners were not able to file their Notice of Appeal on May 23, 2002
as it was only filed on June 3, 2002.
In view of the said circumstances, We are of the belief and so holds that the Notice
of Appeal filed by the petitioners was really filed out of time, the same having been
filed seventeen (17) days late of the reglementary period. By reason of which, the
decision dated November 28, 2001 had already become final and executory.
"Settled is the rule that the perfection of an appeal in the manner and within the
period permitted by law is not only mandatory but jurisdictional, and failure to
perfect that appeal renders the challenged judgment final and executory. This is
not an empty procedural rule but is grounded on fundamental considerations of
public policy and sound practice." (Ram’s Studio and Photographic Equipment, Inc.
vs. Court of Appeals, 346 SCRA 691, 696). Indeed, Atty. Nolasco received the order
106
of denial of the Motion for Reconsideration on May 17, 2002 but filed a Notice of
Appeal only on June 3, 3003. As such, the decision of the lower court ipso
facto became final when no appeal was perfected after the lapse of the
reglementary period. This procedural caveat cannot be trifled with, not even by the
High Court.15
The UP sought a reconsideration, but the CA denied the UP’s motion for
reconsideration on April 19, 2004.16
On May 11, 2004, the UP appealed to the Court by petition for review
on certiorari (G.R. No. 163501).
On June 23, 2004, the Court denied the petition for review.17 The UP moved for the
reconsideration of the denial of its petition for review on August 29, 2004,18 but the
Court denied the motion on October 6, 2004.19 The denial became final and
executory on November 12, 2004.20
In the meanwhile that the UP was exhausting the available remedies to overturn
the denial of due course to the appeal and the issuance of the writ of execution,
Stern Builders and dela Cruz filed in the RTC their motions for execution despite
their previous motion having already been granted and despite the writ of
execution having already issued. On June 11, 2003, the RTC granted another
motion for execution filed on May 9, 2003 (although the RTC had already issued the
writ of execution on October 4, 2002).21
On June 23, 2003 and July 25, 2003, respectively, the sheriff served notices of
garnishment on the UP’s depository banks, namely: Land Bank of the Philippines
(Buendia Branch) and the Development Bank of the Philippines (DBP),
Commonwealth Branch.22 The UP assailed the garnishment through an urgent
motion to quash the notices of garnishment;23 and a motion to quash the writ of
execution dated May 9, 2003.24
On their part, Stern Builders and dela Cruz filed their ex parte motion for issuance
of a release order.25
On October 14, 2003, the RTC denied the UP’s urgent motion to quash, and
granted Stern Builders and dela Cruz’s ex parte motion for issuance of a release
order.26

The UP moved for the reconsideration of the order of October 14, 2003, but the
RTC denied the motion on November 7, 2003.27
On January 12, 2004, Stern Builders and dela Cruz again sought the release of the
garnished funds.28 Despite the UP’s opposition,29 the RTC granted the motion to
release the garnished funds on March 16, 2004.30 On April 20, 2004, however, the
RTC held in abeyance the enforcement of the writs of execution issued on October
4, 2002 and June 3, 2003 and all the ensuing notices of garnishment, citing Section
4, Rule 52, Rules of Court, which provided that the pendency of a timely motion for
reconsideration stayed the execution of the judgment. 31
On December 21, 2004, the RTC, through respondent Judge Agustin S. Dizon,
authorized the release of the garnished funds of the UP,32 to wit:
WHEREFORE, premises considered, there being no more legal impediment for the
release of the garnished amount in satisfaction of the judgment award in the
instant case, let the amount garnished be immediately released by the
Development Bank of the Philippines, Commonwealth Branch, Quezon City in favor
of the plaintiff.
SO ORDERED.
The UP was served on January 3, 2005 with the order of December 21, 2004
directing DBP to release the garnished funds.33
On January 6, 2005, Stern Builders and dela Cruz moved to cite DBP in direct
contempt of court for its non-compliance with the order of release.34
Thereupon, on January 10, 2005, the UP brought a petition for certiorari in the CA
to challenge the jurisdiction of the RTC in issuing the order of December 21, 2004
(CA-G.R. CV No. 88125).35 Aside from raising the denial of due process, the UP
averred that the RTC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in ruling that there was no longer any legal impediment to the
release of the garnished funds. The UP argued that government funds and
properties could not be seized by virtue of writs of execution or garnishment, as
held in Department of Agriculture v. National Labor Relations Commission,36 and
citing Section 84 of Presidential Decree No. 1445 to the effect that "revenue funds
shall not be paid out of any public treasury or depository except in pursuance of an
appropriation law or other specific statutory authority;" and that the order of
garnishment clashed with the ruling in University of the Philippines Board of
107
Regents v. Ligot-Telan37 to the effect that the funds belonging to the UP were
public funds.
On January 19, 2005, the CA issued a temporary restraining order (TRO) upon
application by the UP.38
On March 22, 2005, Stern Builders and dela Cruz filed in the RTC their amended
motion for sheriff’s assistance to implement the release order dated December 21,
2004, stating that the 60-day period of the TRO of the CA had already lapsed.39 The
UP opposed the amended motion and countered that the implementation of the
release order be suspended.40
On May 3, 2005, the RTC granted the amended motion for sheriff’s assistance and
directed the sheriff to proceed to the DBP to receive the check in satisfaction of the
judgment.41
The UP sought the reconsideration of the order of May 3, 2005.42
On May 16, 2005, DBP filed a motion to consign the check representing the
judgment award and to dismiss the motion to cite its officials in contempt of
court.43
On May 23, 2005, the UP presented a motion to withhold the release of the
payment of the judgment award.44
On July 8, 2005, the RTC resolved all the pending matters,45 noting that the DBP
had already delivered to the sheriff Manager’s Check No. 811941 for ₱
16,370,191.74 representing the garnished funds payable to the order of Stern
Builders and dela Cruz as its compliance with the RTC’s order dated December 21,
2004.46 However, the RTC directed in the same order that Stern Builders and dela
Cruz should not encash the check or withdraw its amount pending the final
resolution of the UP’s petition for certiorari, to wit:47
To enable the money represented in the check in question (No. 00008119411) to
earn interest during the pendency of the defendant University of the Philippines
application for a writ of injunction with the Court of Appeals the same may now be
deposited by the plaintiff at the garnishee Bank (Development Bank of the
Philippines), the disposition of the amount represented therein being subject to the
final outcome of the case of the University of the Philippines et al., vs. Hon. Agustin
S. Dizon et al., (CA G.R. 88125) before the Court of Appeals.

Let it be stated herein that the plaintiff is not authorized to encash and withdraw
the amount represented in the check in question and enjoy the same in the fashion
of an owner during the pendency of the case between the parties before the Court
of Appeals which may or may not be resolved in plaintiff’s favor.
With the end in view of seeing to it that the check in question is deposited by the
plaintiff at the Development Bank of the Philippines (garnishee bank), Branch
Sheriff Herlan Velasco is directed to accompany and/or escort the plaintiff in
making the deposit of the check in question.
SO ORDERED.
On September 16, 2005, the CA promulgated its assailed decision dismissing the
UP’s petition for certiorari, ruling that the UP had been given ample opportunity to
contest the motion to direct the DBP to deposit the check in the name of Stern
Builders and dela Cruz; and that the garnished funds could be the proper subject of
garnishment because they had been already earmarked for the project, with the
UP holding the funds only in a fiduciary capacity,48 viz:
Petitioners next argue that the UP funds may not be seized for execution or
garnishment to satisfy the judgment award. Citing Department of Agriculture vs.
NLRC, University of the Philippines Board of Regents vs. Hon. Ligot-Telan,
petitioners contend that UP deposits at Land Bank and the Development Bank of
the Philippines, being government funds, may not be released absent an
appropriations bill from Congress.
The argument is specious. UP entered into a contract with private respondents for
the expansion and renovation of the Arts and Sciences Building of its campus in Los
Baños, Laguna. Decidedly, there was already an appropriations earmarked for the
said project. The said funds are retained by UP, in a fiduciary capacity, pending
completion of the construction project.
We agree with the trial Court [sic] observation on this score:
"4. Executive Order No. 109 (Directing all National Government Agencies
to Revert Certain Accounts Payable to the Cumulative Result of
Operations of the National Government and for Other Purposes) Section
9. Reversion of Accounts Payable, provides that, all 1995 and prior years
documented accounts payable and all undocumented accounts
regardless of the year they were incurred shall be reverted to the
108
Cumulative Result of Operations of the National Government (CROU).
This shall apply to accounts payable of all funds, except fiduciary funds,
as long as the purpose for which the funds were created have not been
accomplished and accounts payable under foreign assisted projects for
the duration of the said project. In this regard, the Department of Budget
and Management issued Joint-Circular No. 99-6 4.0 (4.3) Procedural
Guidelines which provides that all accounts payable that reverted to the
CROU may be considered for payment upon determination thru
administrative process, of the existence, validity and legality of the claim.
Thus, the allegation of the defendants that considering no appropriation
for the payment of any amount awarded to plaintiffs appellee the funds
of defendant-appellants may not be seized pursuant to a writ of
execution issued by the regular court is misplaced. Surely when the
defendants and the plaintiff entered into the General Construction of
Agreement there is an amount already allocated by the latter for the said
project which is no longer subject of future appropriation." 49
After the CA denied their motion for reconsideration on December 23, 2005, the
petitioners appealed by petition for review.
Matters Arising During the Pendency of the Petition
On January 30, 2006, Judge Dizon of the RTC (Branch 80) denied Stern Builders and
dela Cruz’s motion to withdraw the deposit, in consideration of the UP’s intention
to appeal to the CA,50 stating:
Since it appears that the defendants are intending to file a petition for review of
the Court of Appeals resolution in CA-G.R. No. 88125 within the reglementary
period of fifteen (15) days from receipt of resolution, the Court agrees with the
defendants stand that the granting of plaintiffs’ subject motion is premature.
Let it be stated that what the Court meant by its Order dated July 8, 2005 which
states in part that the "disposition of the amount represented therein being subject
to the final outcome of the case of the University of the Philippines, et. al., vs. Hon.
Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the
judgment or resolution of said court has to be final and executory, for if the same
will still be elevated to the Supreme Court, it will not attain finality yet until the
highest court has rendered its own final judgment or resolution.51
 109

However, on January 22, 2007, the UP filed an Urgent Application for A Temporary
Restraining Order and/or A Writ of Preliminary Injunction,52 averring that on
January 3, 2007, Judge Maria Theresa dela Torre-Yadao (who had meanwhile
replaced Judge Dizon upon the latter’s appointment to the CA) had issued another
order allowing Stern Builders and dela Cruz to withdraw the deposit,53 to wit:
It bears stressing that defendants’ liability for the payment of the judgment
obligation has become indubitable due to the final and executory nature of the
Decision dated November 28, 2001. Insofar as the payment of the [sic] judgment
obligation is concerned, the Court believes that there is nothing more the
defendant can do to escape liability. It is observed that there is nothing more the
defendant can do to escape liability. It is observed that defendant U.P. System had
already exhausted all its legal remedies to overturn, set aside or modify the
decision (dated November 28, 2001( rendered against it. The way the Court sees it,
defendant U.P. System’s petition before the Supreme Court concerns only with the
manner by which said judgment award should be satisfied. It has nothing to do
with the legality or propriety thereof, although it prays for the deletion of [sic]
reduction of the award of moral damages.
It must be emphasized that this Court’s finding, i.e., that there was sufficient
appropriation earmarked for the project, was upheld by the Court of Appeals in its
decision dated September 16, 2005. Being a finding of fact, the Supreme Court will,
ordinarily, not disturb the same was said Court is not a trier of fact. Such being the
case, defendants’ arguments that there was no sufficient appropriation for the
payment of the judgment obligation must fail.
System has not prayed for the issuance of a writ of preliminary injunction. Thus,
the Court doubts whether such writ is forthcoming.
The Court honestly believes that if defendants’ petition assailing the Order of this
Court dated December 31, 2004 granting the motion for the release of the
garnished amount was meritorious, the Court of Appeals would have issued a writ
of injunction enjoining the same. Instead, said appellate court not only refused to
issue a wit of preliminary injunction prayed for by U.P. System but denied the
petition, as well.54
The UP contended that Judge Yadao thereby effectively reversed the January 30,
2006 order of Judge Dizon disallowing the withdrawal of the garnished amount
until after the decision in the case would have become final and executory.
Although the Court issued a TRO on January 24, 2007 to enjoin Judge Yadao and all
persons acting pursuant to her authority from enforcing her order of January 3,
2007,55 it appears that on January 16, 2007, or prior to the issuance of the TRO, she
had already directed the DBP to forthwith release the garnished amount to Stern
Builders and dela Cruz; 56 and that DBP had forthwith complied with the order on
January 17, 2007 upon the sheriff’s service of the order of Judge Yadao.57
These intervening developments impelled the UP to file in this Court a
supplemental petition on January 26, 2007,58alleging that the RTC (Judge Yadao)
gravely erred in ordering the immediate release of the garnished amount despite
the pendency of the petition for review in this Court.

While it is true that the former Presiding Judge of this Court in its Order dated
The UP filed a second supplemental petition59 after the RTC (Judge Yadao) denied
January 30, 2006 had stated that:
the UP’s motion for the redeposit of the withdrawn amount on April 10, 2007,60 to
wit:
Let it be stated that what the Court meant by its Order dated July 8, 2005 which
states in part that the "disposition of the amount represented therein being subject
This resolves defendant U.P. System’s Urgent Motion to Redeposit Judgment
to the final outcome of the case of the University of the Philippines, et. al., vs. Hon.
Award praying that plaintiffs be directed to redeposit the judgment award to DBP
Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the
pursuant to the Temporary Restraining Order issued by the Supreme Court.
judgment or resolution of said court has to be final and executory, for if the same
Plaintiffs opposed the motion and countered that the Temporary Restraining Order
will still be elevated to the Supreme Court, it will not attain finality yet until the
issued by the Supreme Court has become moot and academic considering that the
highest court has rendered its own final judgment or resolution.
act sought to be restrained by it has already been performed. They also alleged
that the redeposit of the judgment award was no longer feasible as they have
it should be noted that neither the Court of Appeals nor the Supreme Court issued already spent the same.
a preliminary injunction enjoining the release or withdrawal of the garnished
amount. In fact, in its present petition for review before the Supreme Court, U.P.

It bears stressing, if only to set the record straight, that this Court did not – in its
Order dated January 3, 2007 (the implementation of which was restrained by the
Supreme Court in its Resolution dated January 24, 2002) – direct that that
garnished amount "be deposited with the garnishee bank (Development Bank of
the Philippines)". In the first place, there was no need to order DBP to make such
deposit, as the garnished amount was already deposited in the account of plaintiffs
with the DBP as early as May 13, 2005. What the Court granted in its Order dated
January 3, 2007 was plaintiff’s motion to allow the release of said deposit. It must
be recalled that the Court found plaintiff’s motion meritorious and, at that time,
there was no restraining order or preliminary injunction from either the Court of
Appeals or the Supreme Court which could have enjoined the release of plaintiffs’
deposit. The Court also took into account the following factors:
a) the Decision in this case had long been final and executory after it was
rendered on November 28, 2001;
b) the propriety of the dismissal of U.P. System’s appeal was upheld by
the Supreme Court;
c) a writ of execution had been issued;
d) defendant U.P. System’s deposit with DBP was garnished pursuant to a
lawful writ of execution issued by the Court; and
e) the garnished amount had already been turned over to the plaintiffs
and deposited in their account with DBP.
The garnished amount, as discussed in the Order dated January 16, 2007, was
already owned by the plaintiffs, having been delivered to them by the Deputy
Sheriff of this Court pursuant to par. (c), Section 9, Rule 39 of the 1997 Rules of Civil
Procedure. Moreover, the judgment obligation has already been fully satisfied as
per Report of the Deputy Sheriff.
Anent the Temporary Restraining Order issued by the Supreme Court, the same has
become functus oficio, having been issued after the garnished amount had been
released to the plaintiffs. The judgment debt was released to the plaintiffs on
January 17, 2007, while the Temporary Restraining Order issued by the Supreme
Court was received by this Court on February 2, 2007. At the time of the issuance
of the Restraining Order, the act sought to be restrained had already been done,
thereby rendering the said Order ineffectual.
110
After a careful and thorough study of the arguments advanced by the parties, the
Court is of the considered opinion that there is no legal basis to grant defendant
U.P. System’s motion to redeposit the judgment amount. Granting said motion is
not only contrary to law, but it will also render this Court’s final executory
judgment nugatory. Litigation must end and terminate sometime and somewhere,
and it is essential to an effective administration of justice that once a judgment has
become final the issue or cause involved therein should be laid to rest. This
doctrine of finality of judgment is grounded on fundamental considerations of
public policy and sound practice. In fact, nothing is more settled in law than that
once a judgment attains finality it thereby becomes immutable and unalterable. It
may no longer be modified in any respect, even if the modification is meant to
correct what is perceived to be an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted to be made by the court
rendering it or by the highest court of the land.
WHEREFORE, premises considered, finding defendant U.P. System’s Urgent Motion
to Redeposit Judgment Award devoid of merit, the same is hereby DENIED.
SO ORDERED.
Issues
The UP now submits that:
I
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISMISSING THE PETITION,
ALLOWING IN EFFECT THE GARNISHMENT OF UP FUNDS, WHEN IT RULED THAT
FUNDS HAVE ALREADY BEEN EARMARKED FOR THE CONSTRUCTION PROJECT; AND
THUS, THERE IS NO NEED FOR FURTHER APPROPRIATIONS.
II
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN ALLOWING GARNISHMENT
OF A STATE UNIVERSITY’S FUNDS IN VIOLATION OF ARTICLE XIV, SECTION 5(5) OF
THE CONSTITUTION.
III

IN THE ALTERNATIVE, THE UNIVERSITY INVOKES EQUITY AND THE REVIEW POWERS
OF THIS HONORABLE COURT TO MODIFY, IF NOT TOTALLY DELETE THE AWARD OF
₱ 10 MILLION AS MORAL DAMAGES TO RESPONDENTS.
IV
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE
RELEASE OF THE JUDGMENT AWARD IN ITS ORDER DATED 3 JANUARY 2007 ON THE
GROUND OF EQUITY AND JUDICIAL COURTESY.
V UP was evidently resorting to forum shopping, and to delaying the satisfaction of
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE
RELEASE OF THE JUDGMENT AWARD IN ITS ORDER DATED 16 JANUARY 2007 ON
THE GROUND THAT PETITIONER UNIVERSITY STILL HAS A PENDING MOTION FOR
RECONSIDERATION OF THE ORDER DATED 3 JANUARY 2007.
VI
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN NOT ORDERING THE
REDEPOSIT OF THE GARNISHED AMOUNT TO THE DBP IN VIOLATION OF THE CLEAR
LANGUAGE OF THE SUPREME COURT RESOLUTION DATED 24 JANUARY 2007.
The UP argues that the amount earmarked for the construction project had been
purposely set aside only for the aborted project and did not include incidental
matters like the awards of actual damages, moral damages and attorney’s fees. In
support of its argument, the UP cited Article 12.2 of the General Construction
Agreement, which stipulated that no deductions would be allowed for the payment
of claims, damages, losses and expenses, including attorney’s fees, in case of any
litigation arising out of the performance of the work. The UP insists that the CA
decision was inconsistent with the rulings in Commissioner of Public Highways v.
San Diego61 and Department of Agriculture v. NLRC62 to the effect that government
funds and properties could not be seized under writs of execution or garnishment
to satisfy judgment awards.
Furthermore, the UP contends that the CA contravened Section 5, Article XIV of the
Constitution by allowing the garnishment of UP funds, because the garnishment
resulted in a substantial reduction of the UP’s limited budget allocated for the
remuneration, job satisfaction and fulfillment of the best available teachers; that
Judge Yadao should have exhibited judicial courtesy towards the Court due to the
111
pendency of the UP’s petition for review; and that she should have also desisted
from declaring that the TRO issued by this Court had become functus officio.
Lastly, the UP states that the awards of actual damages of ₱ 5,716,729.00 and
moral damages of ₱ 10 million should be reduced, if not entirely deleted, due to its
being unconscionable, inequitable and detrimental to public service.
In contrast, Stern Builders and dela Cruz aver that the petition for review was
fatally defective for its failure to mention the other cases upon the same issues
pending between the parties (i.e., CA-G.R. No. 77395 and G.R No. 163501); that the
the final judgment by the filing of its petition for review; that the ruling in
Commissioner of Public Works v. San Diego had no application because there was
an appropriation for the project; that the UP retained the funds allotted for the
project only in a fiduciary capacity; that the contract price had been meanwhile
adjusted to ₱ 22,338,553.25, an amount already more than sufficient to cover the
judgment award; that the UP’s prayer to reduce or delete the award of damages
had no factual basis, because they had been gravely wronged, had been deprived
of their source of income, and had suffered untold miseries, discomfort,
humiliation and sleepless years; that dela Cruz had even been constrained to sell
his house, his equipment and the implements of his trade, and together with his
family had been forced to live miserably because of the wrongful actuations of the
UP; and that the RTC correctly declared the Court’s TRO to be already functus
officio by reason of the withdrawal of the garnished amount from the DBP.
The decisive issues to be considered and passed upon are, therefore:
(a) whether the funds of the UP were the proper subject of garnishment in order to
satisfy the judgment award; and (b) whether the UP’s prayer for the deletion of the
awards of actual damages of ₱ 5,716,729.00, moral damages of ₱ 10,000,000.00
and attorney’s fees of ₱ 150,000.00 plus ₱ 1,500.00 per appearance could be
granted despite the finality of the judgment of the RTC.
Ruling
The petition for review is meritorious.
I.
UP’s funds, being government funds,
are not subject to garnishment

The UP was founded on June 18, 1908 through Act 1870 to provide advanced
instruction in literature, philosophy, the sciences, and arts, and to give professional
and technical training to deserving students.63 Despite its establishment as a body
corporate,64 the UP remains to be a "chartered institution"65 performing a
legitimate government function. It is an institution of higher learning, not a
corporation established for profit and declaring any dividends.66 In enacting
Republic Act No. 9500 (The University of the Philippines Charter of 2008), Congress
has declared the UP as the national university67 "dedicated to the search for truth
and knowledge as well as the development of future leaders."68
Irrefragably, the UP is a government instrumentality,69 performing the State’s
constitutional mandate of promoting quality and accessible education.70 As a
government instrumentality, the UP administers special funds sourced from the
fees and income enumerated under Act No. 1870 and Section 1 of Executive Order
No. 714,71 and from the yearly appropriations, to achieve the purposes laid down
by Section 2 of Act 1870, as expanded in Republic Act No. 9500.72 All the funds
going into the possession of the UP, including any interest accruing from the
deposit of such funds in any banking institution, constitute a "special trust fund,"
the disbursement of which should always be aligned with the UP’s mission and
purpose,73 and should always be subject to auditing by the COA.74
Presidential Decree No. 1445 defines a "trust fund" as a fund that officially comes
in the possession of an agency of the government or of a public officer as trustee,
agent or administrator, or that is received for the fulfillment of some obligation.75 A
trust fund may be utilized only for the "specific purpose for which the trust was
created or the funds received."76
The funds of the UP are government funds that are public in character. They
include the income accruing from the use of real property ceded to the UP that
may be spent only for the attainment of its institutional objectives.77 Hence, the
funds subject of this action could not be validly made the subject of the RTC’s writ
of execution or garnishment. The adverse judgment rendered against the UP in a
suit to which it had impliedly consented was not immediately enforceable by
execution against the UP,78 because suability of the State did not necessarily mean
its liability.79
A marked distinction exists between suability of the State and its liability. As the
Court succinctly stated in Municipality of San Fernando, La Union v. Firme:80
A distinction should first be made between suability and liability. "Suability
depends on the consent of the state to be sued, liability on the applicable law and
112
the established facts. The circumstance that a state is suable does not necessarily
mean that it is liable; on the other hand, it can never be held liable if it does not
first consent to be sued. Liability is not conceded by the mere fact that the state
has allowed itself to be sued. When the state does waive its sovereign immunity, it
is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.
Also, in Republic v. Villasor,81 where the issuance of an alias writ of execution
directed against the funds of the Armed Forces of the Philippines to satisfy a final
and executory judgment was nullified, the Court said:
xxx The universal rule that where the State gives its consent to be sued by private
parties either by general or special law, it may limit claimant’s action "only up to
the completion of proceedings anterior to the stage of execution" and that the
power of the Courts ends when the judgment is rendered, since government funds
and properties may not be seized under writs of execution or garnishment to
satisfy such judgments, is based on obvious considerations of public policy.
Disbursements of public funds must be covered by the corresponding
appropriation as required by law. The functions and public services rendered by the
State cannot be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects, as appropriated by law.
The UP correctly submits here that the garnishment of its funds to satisfy the
judgment awards of actual and moral damages (including attorney’s fees) was not
validly made if there was no special appropriation by Congress to cover the liability.
It was, therefore, legally unwarranted for the CA to agree with the RTC’s holding in
the order issued on April 1, 2003 that no appropriation by Congress to allocate and
set aside the payment of the judgment awards was necessary because "there
(were) already an appropriations (sic) earmarked for the said project."82 The CA and
the RTC thereby unjustifiably ignored the legal restriction imposed on the trust
funds of the Government and its agencies and instrumentalities to be used
exclusively to fulfill the purposes for which the trusts were created or for which the
funds were received except upon express authorization by Congress or by the head
of a government agency in control of the funds, and subject to pertinent budgetary
laws, rules and regulations.83
Indeed, an appropriation by Congress was required before the judgment that
rendered the UP liable for moral and actual damages (including attorney’s fees)
would be satisfied considering that such monetary liabilities were not covered by
the "appropriations earmarked for the said project." The Constitution strictly
mandated that "(n)o money shall be paid out of the Treasury except in pursuance
of an appropriation made by law."84

II
COA must adjudicate private respondents’ claim
before execution should proceed
The execution of the monetary judgment against the UP was within the primary
jurisdiction of the COA. This was expressly provided in Section 26 of Presidential
Decree No. 1445, to wit:
Section 26. General jurisdiction. - The authority and powers of the Commission shall
extend to and comprehend all matters relating to auditing procedures, systems and
controls, the keeping of the general accounts of the Government, the preservation
of vouchers pertaining thereto for a period of ten years, the examination and
inspection of the books, records, and papers relating to those accounts; and the
audit and settlement of the accounts of all persons respecting funds or property
received or held by them in an accountable capacity, as well as the examination,
audit, and settlement of all debts and claims of any sort due from or owing to the
Government or any of its subdivisions, agencies and instrumentalities. The said
jurisdiction extends to all government-owned or controlled corporations, including
their subsidiaries, and other self-governing boards, commissions, or agencies of the
Government, and as herein prescribed, including non governmental entities
subsidized by the government, those funded by donations through the
government, those required to pay levies or government share, and those for
which the government has put up a counterpart fund or those partly funded by the
government.
It was of no moment that a final and executory decision already validated the claim
against the UP. The settlement of the monetary claim was still subject to the
primary jurisdiction of the COA despite the final decision of the RTC having already
validated the claim.85 As such, Stern Builders and dela Cruz as the claimants had no
alternative except to first seek the approval of the COA of their monetary claim.
On its part, the RTC should have exercised utmost caution, prudence and
judiciousness in dealing with the motions for execution against the UP and the
garnishment of the UP’s funds. The RTC had no authority to direct the immediate
withdrawal of any portion of the garnished funds from the depository banks of the
UP. By eschewing utmost caution, prudence and judiciousness in dealing with the
execution and garnishment, and by authorizing the withdrawal of the garnished
funds of the UP, the RTC acted beyond its jurisdiction, and all its orders and
issuances thereon were void and of no legal effect, specifically: (a) the order Judge
Yadao issued on January 3, 2007 allowing Stern Builders and dela Cruz to withdraw
the deposited garnished amount; (b) the order Judge Yadao issued on January 16,
113
2007 directing DBP to forthwith release the garnish amount to Stern Builders and
dela Cruz; (c) the sheriff’s report of January 17, 2007 manifesting the full
satisfaction of the writ of execution; and (d) the order of April 10, 2007 deying the
UP’s motion for the redeposit of the withdrawn amount. Hence, such orders and
issuances should be struck down without exception.
Nothing extenuated Judge Yadao’s successive violations of Presidential Decree No.
1445. She was aware of Presidential Decree No. 1445, considering that the Court
circulated to all judges its Administrative Circular No. 10-2000,86 issued on October
25, 2000, enjoining them "to observe utmost caution, prudence and judiciousness
in the issuance of writs of execution to satisfy money judgments against
government agencies and local government units" precisely in order to prevent the
circumvention of Presidential Decree No. 1445, as well as of the rules and
procedures of the COA, to wit:
In order to prevent possible circumvention of the rules and procedures of the
Commission on Audit, judges are hereby enjoined to observe utmost caution,
prudence and judiciousness in the issuance of writs of execution to satisfy money
judgments against government agencies and local government units.
Judges should bear in mind that in Commissioner of Public Highways v. San Diego
(31 SCRA 617, 625 1970), this Court explicitly stated:
"The universal rule that where the State gives its consent to be sued by private
parties either by general or special law, it may limit claimant’s action ‘only up to
the completion of proceedings anterior to the stage of execution’ and that the
power of the Court ends when the judgment is rendered, since government funds
and properties may not be seized under writs of execution or garnishment to
satisfy such judgments, is based on obvious considerations of public policy.
Disbursements of public funds must be covered by the corresponding
appropriation as required by law. The functions and public services rendered by the
State cannot be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects, as appropriated by law.
Moreover, it is settled jurisprudence that upon determination of State liability,
the prosecution, enforcement or satisfaction thereof must still be pursued in
accordance with the rules and procedures laid down in P.D. No. 1445, otherwise
known as the Government Auditing Code of the Philippines (Department of
Agriculture v. NLRC, 227 SCRA 693, 701-02 1993 citing Republic vs. Villasor, 54
SCRA 84 1973). All money claims against the Government must first be filed with
the Commission on Audit which must act upon it within sixty days. Rejection of

the claim will authorize the claimant to elevate the matter to the Supreme Court
on certiorari and in effect, sue the State thereby (P.D. 1445, Sections 49-50).
However, notwithstanding the rule that government properties are not subject to
levy and execution unless otherwise provided for by statute (Republic v. Palacio, 23
SCRA 899 1968; Commissioner of Public Highways v. San Diego, supra) or municipal
ordinance (Municipality of Makati v. Court of Appeals, 190 SCRA 206 1990), the
Court has, in various instances, distinguished between government funds and
properties for public use and those not held for public use. Thus, in Viuda de Tan
Toco v. Municipal Council of Iloilo (49 Phil 52 1926, the Court ruled that "where
property of a municipal or other public corporation is sought to be subjected to
execution to satisfy judgments recovered against such corporation, the question as
to whether such property is leviable or not is to be determined by the usage and
purposes for which it is held." The following can be culled from Viuda de Tan Toco
v. Municipal Council of Iloilo:
1. Properties held for public uses – and generally everything held for
governmental purposes – are not subject to levy and sale under execution against
such corporation. The same rule applies to funds in the hands of a public officer
and taxes due to a municipal corporation.
2. Where a municipal corporation owns in its proprietary capacity, as distinguished
from its public or government capacity, property not used or used for a public
purpose but for quasi-private purposes, it is the general rule that such property
may be seized and sold under execution against the corporation.
3. Property held for public purposes is not subject to execution merely because it is
temporarily used for private purposes. If the public use is wholly abandoned, such
property becomes subject to execution.
This Administrative Circular shall take effect immediately and the Court
Administrator shall see to it that it is faithfully implemented.
Although Judge Yadao pointed out that neither the CA nor the Court had issued as
of then any writ of preliminary injunction to enjoin the release or withdrawal of the
garnished amount, she did not need any writ of injunction from a superior court to
compel her obedience to the law. The Court is disturbed that an experienced judge
like her should look at public laws like Presidential Decree No. 1445 dismissively
instead of loyally following and unquestioningly implementing them. That she did
114
so turned her court into an oppressive bastion of mindless tyranny instead of
having it as a true haven for the seekers of justice like the UP.
III
Period of appeal did not start without effective
service of decision upon counsel of record;
Fresh-period rule announced in
Neypes v. Court of Appeals
can be given retroactive application
The UP next pleads that the Court gives due course to its petition for review in the
name of equity in order to reverse or modify the adverse judgment against it
despite its finality. At stake in the UP’s plea for equity was the return of the amount
of ₱ 16,370,191.74 illegally garnished from its trust funds. Obstructing the plea is
the finality of the judgment based on the supposed tardiness of UP’s appeal, which
the RTC declared on September 26, 2002. The CA upheld the declaration of finality
on February 24, 2004, and the Court itself denied the UP’s petition for review on
that issue on May 11, 2004 (G.R. No. 163501). The denial became final on
November 12, 2004.
It is true that a decision that has attained finality becomes immutable and
unalterable, and cannot be modified in any respect,87 even if the modification is
meant to correct erroneous conclusions of fact and law, and whether the
modification is made by the court that rendered it or by this Court as the highest
court of the land.88 Public policy dictates that once a judgment becomes final,
executory and unappealable, the prevailing party should not be deprived of the
fruits of victory by some subterfuge devised by the losing party. Unjustified delay in
the enforcement of such judgment sets at naught the role and purpose of the
courts to resolve justiciable controversies with finality.89Indeed, all litigations must
at some time end, even at the risk of occasional errors.
But the doctrine of immutability of a final judgment has not been absolute, and has
admitted several exceptions, among them: (a) the correction of clerical errors; (b)
the so-called nunc pro tunc entries that cause no prejudice to any party; (c) void
judgments; and (d) whenever circumstances transpire after the finality of the
decision that render its execution unjust and inequitable.90 Moreover, in Heirs of
Maura So v. Obliosca,91 we stated that despite the absence of the preceding
circumstances, the Court is not precluded from brushing aside procedural norms if
only to serve the higher interests of justice and equity. Also, in Gumaru v. Quirino
State College,92 the Court nullified the proceedings and the writ of execution issued

by the RTC for the reason that respondent state college had not been represented
in the litigation by the Office of the Solicitor General.
We rule that the UP’s plea for equity warrants the Court’s exercise of the
exceptional power to disregard the declaration of finality of the judgment of the
RTC for being in clear violation of the UP’s right to due process.
Both the CA and the RTC found the filing on June 3, 2002 by the UP of the notice of
appeal to be tardy. They based their finding on the fact that only six days remained
of the UP’s reglementary 15-day period within which to file the notice of appeal
because the UP had filed a motion for reconsideration on January 16, 2002 vis-à-vis
the RTC’s decision the UP received on January 7, 2002; and that because the denial
of the motion for reconsideration had been served upon Atty. Felimon D. Nolasco
of the UPLB Legal Office on May 17, 2002, the UP had only until May 23, 2002
within which to file the notice of appeal.
The UP counters that the service of the denial of the motion for reconsideration
upon Atty. Nolasco was defective considering that its counsel of record was not
Atty. Nolasco of the UPLB Legal Office but the OLS in Diliman, Quezon City; and that
the period of appeal should be reckoned from May 31, 2002, the date when the
OLS received the order. The UP submits that the filing of the notice of appeal on
June 3, 2002 was well within the reglementary period to appeal.
We agree with the submission of the UP.
Firstly, the service of the denial of the motion for reconsideration upon Atty.
Nolasco of the UPLB Legal Office was invalid and ineffectual because he was
admittedly not the counsel of record of the UP. The rule is that it is on the counsel
and not the client that the service should be made.93
That counsel was the OLS in Diliman, Quezon City, which was served with the
denial only on May 31, 2002. As such, the running of the remaining period of six
days resumed only on June 1, 2002,94 rendering the filing of the UP’s notice of
appeal on June 3, 2002 timely and well within the remaining days of the UP’s
period to appeal.
Verily, the service of the denial of the motion for reconsideration could only be
validly made upon the OLS in Diliman, and no other. The fact that Atty. Nolasco was
in the employ of the UP at the UPLB Legal Office did not render the service upon
him effective. It is settled that where a party has appeared by counsel, service must
115
be made upon such counsel.95 Service on the party or the party’s employee is not
effective because such notice is not notice in law.96 This is clear enough from
Section 2, second paragraph, of Rule 13, Rules of Court, which explicitly states that:
"If any party has appeared by counsel, service upon him shall be made upon his
counsel or one of them, unless service upon the party himself is ordered by the
court. Where one counsel appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side." As such, the period
to appeal resumed only on June 1, 2002, the date following the service on May 31,
2002 upon the OLS in Diliman of the copy of the decision of the RTC, not from the
date when the UP was notified.97
Accordingly, the declaration of finality of the judgment of the RTC, being devoid of
factual and legal bases, is set aside.
Secondly, even assuming that the service upon Atty. Nolasco was valid and
effective, such that the remaining period for the UP to take a timely appeal would
end by May 23, 2002, it would still not be correct to find that the judgment of the
RTC became final and immutable thereafter due to the notice of appeal being filed
too late on June 3, 2002.
In so declaring the judgment of the RTC as final against the UP, the CA and the RTC
applied the rule contained in the second paragraph of Section 3, Rule 41 of the
Rules of Court to the effect that the filing of a motion for reconsideration
interrupted the running of the period for filing the appeal; and that the period
resumed upon notice of the denial of the motion for reconsideration. For that
reason, the CA and the RTC might not be taken to task for strictly adhering to the
rule then prevailing.
However, equity calls for the retroactive application in the UP’s favor of the fresh-
period rule that the Court first announced in mid-September of 2005 through its
ruling in Neypes v. Court of Appeals,98 viz:
To standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh
period of 15 days within which to file the notice of appeal in the Regional Trial
Court, counted from receipt of the order dismissing a motion for a new trial or
motion for reconsideration.
The retroactive application of the fresh-period rule, a procedural law that aims "to
regiment or make the appeal period uniform, to be counted from receipt of the

order denying the motion for new trial, motion for reconsideration (whether full or
partial) or any final order or resolution,"99 is impervious to any serious challenge.
This is because there are no vested rights in rules of procedure.100 A law or
regulation is procedural when it prescribes rules and forms of procedure in order
that courts may be able to administer justice.101 It does not come within the legal
conception of a retroactive law, or is not subject of the general rule prohibiting the
retroactive operation of statues, but is given retroactive effect in actions pending
and undetermined at the time of its passage without violating any right of a person
who may feel that he is adversely affected.
We have further said that a procedural rule that is amended for the benefit of
litigants in furtherance of the administration of justice shall be retroactively applied
to likewise favor actions then pending, as equity delights in equality.102 We may
even relax stringent procedural rules in order to serve substantial justice and in the
exercise of this Court’s equity jurisdiction.103 Equity jurisdiction aims to do
complete justice in cases where a court of law is unable to adapt its judgments to
the special circumstances of a case because of the inflexibility of its statutory or
legal jurisdiction.104
It is cogent to add in this regard that to deny the benefit of the fresh-period rule to
the UP would amount to injustice and absurdity – injustice, because the judgment
in question was issued on November 28, 2001 as compared to the judgment in
Neypes that was rendered in 1998; absurdity, because parties receiving notices of
judgment and final orders issued in the year 1998 would enjoy the benefit of the
fresh-period rule but the later rulings of the lower courts like that herein would
not.105
Consequently, even if the reckoning started from May 17, 2002, when Atty.
Nolasco received the denial, the UP’s filing on June 3, 2002 of the notice of appeal
was not tardy within the context of the fresh-period rule. For the UP, the fresh
period of 15-days counted from service of the denial of the motion for
reconsideration would end on June 1, 2002, which was a Saturday. Hence, the UP
had until the next working day, or June 3, 2002, a Monday, within which to appeal,
conformably with Section 1 of Rule 22, Rules of Court, which holds that: "If the last
day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the next
working day."
IV
Awards of monetary damages,
116
being devoid of factual and legal bases,
did not attain finality and should be deleted
Section 14 of Article VIII of the Constitution prescribes that express findings of fact
and of law should be made in the decision rendered by any court, to wit:
Section 14. No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall
be refused due course or denied without stating the legal basis therefor.
Implementing the constitutional provision in civil actions is Section 1 of Rule
36, Rules of Court, viz:
Section 1. Rendition of judgments and final orders. — A judgment or final order
determining the merits of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on which
it is based, signed by him, and filed with the clerk of the court. (1a)
The Constitution and the Rules of Court apparently delineate two main essential
parts of a judgment, namely: the body and the decretal portion. Although the latter
is the controlling part,106 the importance of the former is not to be lightly regarded
because it is there where the court clearly and distinctly states its findings of fact
and of law on which the decision is based. To state it differently, one without the
other is ineffectual and useless. The omission of either inevitably results in a
judgment that violates the letter and the spirit of the Constitution and the Rules of
Court.
The term findings of fact that must be found in the body of the decision refers to
statements of fact, not to conclusions of law.107 Unlike in pleadings where ultimate
facts alone need to be stated, the Constitution and the Rules of Court require not
only that a decision should state the ultimate facts but also that it should specify
the supporting evidentiary facts, for they are what are called the findings of fact.
The importance of the findings of fact and of law cannot be overstated. The reason
and purpose of the Constitution and the Rules of Court in that regard are obviously
to inform the parties why they win or lose, and what their rights and obligations
are. Only thereby is the demand of due process met as to the parties. As Justice
Isagani A. Cruz explained in Nicos Industrial Corporation v. Court of Appeals:108

It is a requirement of due process that the parties to a litigation be informed of
how it was decided, with an explanation of the factual and legal reasons that led to
the conclusions of the court. The court cannot simply say that judgment is
rendered in favor of X and against Y and just leave it at that without any
justification whatsoever for its action. The losing party is entitled to know why he
lost, so he may appeal to a higher court, if permitted, should he believe that the
decision should be reversed. A decision that does not clearly and distinctly state
the facts and the law on which it is based leaves the parties in the dark as to how it
was reached and is especially prejudicial to the losing party, who is unable to
pinpoint the possible errors of the court for review by a higher tribunal.
Here, the decision of the RTC justified the grant of actual and moral damages, and
attorney’s fees in the following terse manner, viz:
xxx The Court is not unmindful that due to defendants’ unjustified refusal to pay
their outstanding obligation to plaintiff, the same suffered losses and incurred
expenses as he was forced to re-mortgage his house and lot located in Quezon City
to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the
form of interest and penalties incurred in the course of the construction of the
subject project.109
The statement that "due to defendants’ unjustified refusal to pay their outstanding
obligation to plaintiff, the same suffered losses and incurred expenses as he was
forced to re-mortgage his house and lot located in Quezon City to Metrobank (Exh.
"CC") and BPI Bank just to pay its monetary obligations in the form of interest and
penalties incurred in the course of the construction of the subject project" was only
a conclusion of fact and law that did not comply with the constitutional and
statutory prescription. The statement specified no detailed expenses or losses
constituting the ₱ 5,716,729.00 actual damages sustained by Stern Builders in
relation to the construction project or to other pecuniary hardships. The omission
of such expenses or losses directly indicated that Stern Builders did not prove them
at all, which then contravened Article 2199, Civil Code, the statutory basis for the
award of actual damages, which entitled a person to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. As such, the
actual damages allowed by the RTC, being bereft of factual support, were
speculative and whimsical. Without the clear and distinct findings of fact and law,
the award amounted only to an ipse dixit on the part of the RTC,110 and did not
attain finality.
There was also no clear and distinct statement of the factual and legal support for
the award of moral damages in the substantial amount of ₱ 10,000,000.00. The
117
award was thus also speculative and whimsical. Like the actual damages, the moral
damages constituted another judicial ipse dixit, the inevitable consequence of
which was to render the award of moral damages incapable of attaining finality. In
addition, the grant of moral damages in that manner contravened the law that
permitted the recovery of moral damages as the means to assuage "physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury."111 The contravention of
the law was manifest considering that Stern Builders, as an artificial person, was
incapable of experiencing pain and moral sufferings.112 Assuming that in granting
the substantial amount of ₱ 10,000,000.00 as moral damages, the RTC might have
had in mind that dela Cruz had himself suffered mental anguish and anxiety. If that
was the case, then the RTC obviously disregarded his separate and distinct
personality from that of Stern Builders.113 Moreover, his moral and emotional
sufferings as the President of Stern Builders were not the sufferings of Stern
Builders. Lastly, the RTC violated the basic principle that moral damages were not
intended to enrich the plaintiff at the expense of the defendant, but to restore the
plaintiff to his status quo ante as much as possible. Taken together, therefore, all
these considerations exposed the substantial amount of ₱ 10,000,000.00 allowed
as moral damages not only to be factually baseless and legally indefensible, but
also to be unconscionable, inequitable and unreasonable.
Like the actual and moral damages, the ₱ 150,000.00, plus ₱ 1,500.00 per
appearance, granted as attorney’s fees were factually unwarranted and devoid of
legal basis. The general rule is that a successful litigant cannot recover attorney’s
fees as part of the damages to be assessed against the losing party because of the
policy that no premium should be placed on the right to litigate.114 Prior to the
effectivity of the present Civil Code, indeed, such fees could be recovered only
when there was a stipulation to that effect. It was only under the present Civil Code
that the right to collect attorney’s fees in the cases mentioned in Article 2208115 of
the Civil Code came to be recognized.116 Nonetheless, with attorney’s fees being
allowed in the concept of actual damages,117 their amounts must be factually and
legally justified in the body of the decision and not stated for the first time in the
decretal portion.118 Stating the amounts only in the dispositive portion of the
judgment is not enough;119 a rendition of the factual and legal justifications for
them must also be laid out in the body of the decision.120
That the attorney’s fees granted to the private respondents did not satisfy the
foregoing requirement suffices for the Court to undo them. 121 The grant was
ineffectual for being contrary to law and public policy, it being clear that the
express findings of fact and law were intended to bring the case within the
exception and thereby justify the award of the attorney’s fees. Devoid of such

express findings, the award was a conclusion without a premise, its basis being
improperly left to speculation and conjecture.122
Nonetheless, the absence of findings of fact and of any statement of the law and
jurisprudence on which the awards of actual and moral damages, as well as of
attorney’s fees, were based was a fatal flaw that invalidated the decision of the RTC
only as to such awards. As the Court declared in Velarde v. Social Justice
Society,123 the failure to comply with the constitutional requirement for a clear and
distinct statement of the supporting facts and law "is a grave abuse of discretion
amounting to lack or excess of jurisdiction" and that "(d)ecisions or orders issued in
careless disregard of the constitutional mandate are a patent nullity and must be
struck down as void."124 The other item granted by the RTC (i.e., ₱ 503,462.74) shall
stand, subject to the action of the COA as stated herein.
WHEREFORE, the Court GRANTS the petition for review on
certiorari; REVERSES and SETS ASIDE the decision of the Court of Appeals under
review; ANNULS the orders for the garnishment of the funds of the University of
the Philippines and for the release of the garnished amount to Stern Builders
Corporation and Servillano dela Cruz; and DELETES from the decision of the
Regional Trial Court dated November 28, 2001 for being void only the awards of
actual damages of ₱ 5,716,729.00, moral damages of ₱ 10,000,000.00, and
attorney's fees of ₱ 150,000.00, plus ₱ 1,500.00 per appearance, in favor of Stern
Builders Corporation and Servillano dela Cruz.
The Court ORDERS Stem Builders Corporation and Servillano dela Cruz to redeposit
the amount of ₱ 16,370,191.74 within 10 days from receipt of this decision.
Costs of suit to be paid by the private respondents.
SO ORDERED.
U.P. v. Dizon, G.R.No. 18112, August 23, 2012
FACTS:
On August 30, 1990, UP entered into an agreement with Stern builders Corp for the
construction of extension building in UPLB. Stern Builders submitted 3 billings but
UP only paid for 2, the 3rd was not paid due to disallowance of COA. When the
disallowance was lifted, UP still failed to pay. So Stern Builders sued them. UP failed
to file an appeal during the 15-day period. When they appealed on June 3, 2022
118
arguing that they only received the copy on may 31, 2002, RTC denied it and issued
a writ of execution on October 4, 2002. UP files with CA for certiorari but was
likewise denied. On December 21, 2004, RTC judge Dizon orders the release of the
garnished funds from UP. On January 10, 2005, UP files for certiorari the decision of
CA. Petition was granted and TRO filed. After the 60-day period of TRO, RTC directs
sheriff to receive the check from DBP. On July 8, 2005, Dizon ordered the non-
withdrawal of check because the certiorari is pending. On September 16, 2005, UP
files for certiorari which was denied on December 2005 but UP files for petition for
review. On January 3, 2007, RTC judge Yadao replaced Dizon, ordered the
withdrawal. On January 22, 2007, UP filed TRO with SC which was granted. UP files
petition for review for RTC’s decision to withdraw funds.
ISSUE:W/N the fresh-period rule in Neypes v CA can be givenretroactive application
HELD:
Yes. The retroactive effect of a procedural law does not come within the legal
conception of retroactivity or is not subject to the general rule prohibiting
retroactive operation of statutes. Rather, its retroactivity is already given since by
the nature of rules of procedure, no vested right is impinged in its application.
UNIVERSITY OF THE PHILIPPINES vs. DIZON
DOCTRINE:
When the State does waive its sovereign immunity, it is only giving the plaintiff the
chance to prove, if it can, that the defendant is liable.
FACTS:
UP entered into an agreement with respondent Stern Builders for the extension
and renovation of the CAS Building in UPLB. Stern submitted three progress billings
and UP paid two of them, but the third one was not paid. Thus, Stern filed a case
against UP in RTC QC wherein it decided in favor of Stern Builders. UP, however,
failed to file a timely notice of appeal. The motion for writ of execution of Stern
Builders was granted. RTC respondent Judge Dizon orders for the release of
garnished funds of UP. Hence, the sheriff served notices of garnishment on UP’s
depository banks.
 119

ISSUE: Whether the funds of UP can be subject to garnishment.

HELD:

NO. The funds of the UP are government funds that are public in character. They
include the income accruing from the use of real property ceded to the UP that
may be spent only for the attainment of its institutional objectives. Hence, the
funds subject of this action could not be validly made the subject of the RTC’s writ
of execution or garnishment.

The adverse judgment rendered against the UP in a suit to which it had impliedly
consented was not immediately enforceable by execution against the UP, because
suability of the State did not necessarily mean its liability. Suability depends on the
consent of the State to be sued, liability on the applicable law and the established
facts. The circumstance that a state is suable does not necessarily mean that it is
liable; on the other hand, it can never be held liable if it does not first consent to be
sued. Liability is not conceded by the mere fact that the state has allowed itself to
be sued. When the State does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable.

UP was correct in saying that the garnishment of its funds to satisfy the judgment
awards of actual and moral damages (including attorney’s fees) was not validly
made if there was no special appropriation by Congress to cover the liability.
 120

EN BANC of the COA pursuant to Rule VIII of the 2009 Revised Rules of Procedure of the
COA.5
January 31, 2017
On April 14, 2010, the petitioners, represented by Mayor Bai Annie C. Montawal
G.R. No. 212376 (Montawal), filed a petition with the COA,6 praying that the DPWH be ordered to
pay the petitioners the sum of ₱122,051,850.00 as compensation for their
damaged crops, properties and improvements. On September 16, 2010, Buisan
MADAG BUISAN, et al, Petitioners.
filed a Motion to Dismiss the Petition alleging that Montawal was not authorized to
vs.
represent them. In fact, Buisan and the other claimants filed a separate petition
COMMISSION ON AUDIT and DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS,
with the COA based on that same money claim.7
Respondents.

In its Answer, the DPWH averred that the petitioners failed to establish that they
DECISION
are the owners of crops and properties allegedly damaged, and that the damage
was caused by the construction of the Project. Moreover, the DPWH asserted that
REYES, J.: the petitioners' cause of action had already prescribed. 8

Before the Court is a Petition for Review on Certiorari1under Rule 64, in relation to In its Decision9 dated November 20, 2012, the COA denied the money claims of the
Rule 65, of the Rules of Court assailing the Decision2 dated November 20, 2012 of petitioners, to wit:
the Commission on Audit (COA) in COA CP Case No. 2010-089, which denied the
money claims of Madag Buisan (Buisan), et al. (petitioners) against the Department
WHEREFORE, premises considered, this Commission DENIES the herein Petition for
of Public Works and Highways (DPWH) in the amount of ₱122,051,850.00 for lack
money claim for lack of merit. 10
of merit, and the Resolution3 dated February 14, 2014 denying the motion for
reconsideration.
The COA held that for the petitioners' failure to file their money claims within a
reasonable time, they are deemed to have committed laches. Furthermore, the
The Antecedents
petitioners' cause of action had already prescribed in view of Article 1146 of the
Civil Code. 11
In 1989, the DPWH undertook the construction of the Liguasan Cut-off hannel
(Project) in Tunggol, Pagalungan, Maguindanao, to minimize the perennial problem
The petitioners filed a motion for reconsideration, but the same was denied by the
of flooding in the area. In April 2001, the DPWH received various claims from land
COA for lack of merit. 12
owners for damages allegedly caused to their properties, crops and improvements
by the premature opening of the Project. Hence, the Regional Director (RD), DPWH
Regional Office (R.O.) No. XII, Cotabato City, investigated the claims.4 Issue

The DPWH R.O. No. XII and the Technical Working Group (TWG) recommended in WHETHER THE COA GRAVELY ABUSED ITS DISCRETION IN FINDING THAT THE
2004 to pay just compensation to the claimants. The TWG, however, noted that PETITIONERS' CLAIM WAS BARRED BY LACHES AND PRESCRIPTION.
since the event occurred in 1989, it could not account physically the actual quantity
of the damaged crops and properties. In 2006, an ad hoc committee was created to Ruling of the Court
determine the legality and propriety of the claims. However, due to the
considerable lapse of time and the insufficiency of evidence, no final resolution was The Court denies the petition.
made by the DPWH. The claims were forwarded to the RD of the DPWH R.O. No. XII
to be returned to the claimants, as such are considered to be under the jurisdiction

The petition failed to comply with the rules on certification against
forum shopping.
Section 5 of Rule 64 of the Rules of Court requires, among others, that in a petition
for review of judgments and final orders or resolutions of COA, the petition should
be verified and contain a sworn certification against forum shopping as provided in
the fourth paragraph of Section 3, Rule 46, viz.:
SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. -
The petitioner shall also submit together with the petition a sworn certification
that he has not theretofore commenced any other action involving the same issues
in the Supreme Court, the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or proceeding, he must state
the status of the same; and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.
The failure of the petitioner to comply any of the requirements shall be sufficient
ground for the dismissal of the petition. (Emphasis ours)
In the present case, the certification against forum shopping was signed by
Montawal, the mayor of the Municipality of Montawal, Maguindanao. 13 Her bare
statement that she was the petitioners' duly constituted attorney-in-fact in filing
the petition before the COA can hardly constitute as compliance with the rules. She
did not even append a Special Power of Attorney executed by the affected
landowners. Montawal's legal capacity to sue on behalf of the petitioners is
questionable, considering that her authority to represent the claimants was even
assailed by the petitioners, when they filed with the COA a Motion to Dismiss the
Petition filed therein by Montawal.14
In the case of natural persons, the rule requires the parties themselves to sign the
certification against forum shopping. The reason for such requirement is that the
petitioner himself knows better than anyone else whether a separate case has
been filed or pending which involves substantially the same issues. 15 In this case,
the certification against forum shopping in the filing of this petition was neither
signed by the petitioners nor their counsel, but by the mayor of their town who is
not even one of the petitioners in this case. Evidently, the petitioners failed to
121
comply with the certification against forum shopping requirement absent any
compelling reason as to warrant an exception based on the circumstances of the
case. 16
The Doctrine of Non-Suability of State insulates the DPWH, a governmental
entity, from claims of damages.
The fundamental law of the land provides that the State cannot be sued without its
consent. 17 It is a fundamental postulate of constitutionalism flowing from the
juristic concept of sovereignty that the State, as well as its government, is immune
from suit unless it gives its consent. The rule, in any case, is not absolute for it does
not say that the State may not be sued under any circumstances. The doctrine only
conveys that "the state may not be sued without its consent;" its clear import then
is that the State may at times be sued. 18 Suits filed against government agencies
may either be against incorporated or unincorporated agencies. In case of
incorporated agencies, its suability depends upon whether its own organic act
specifically provides that it can sue and be sued in Court. 19
As the State's engineering and construction arm, the DPWH exercises
governmental functions that effectively insulate it from any suit, much less from
any monetary liability. The construction of the Project which was for the purpose of
minimizing the perennial problem of flood in the area of Tunggol, Montawal,
Maguindanao, is well within the powers and functions of the DPWH as mandated
by the Administrative Code of 1997.
Hence, the Doctrine of Non-Suability clothes the DPWH from being held
responsible for alleged damages it performed in consonance with its mandated
duty. Nowhere does it appear in the petition that the State has given its consent,
expressly or impliedly, to be sued before the courts. The failure to allege the
existence of the State's consent to be sued in the complaint is a fatal defect, and on
this basis alone, should cause the dismissal of the complaint. 20
The petitioners' cause of action has been barred by prescription and laches.
The COA denied the petition primarily on the ground that the petitioners filed their
money claims only on 2014, or 15 years after their cause of action arose in 1989.
The petitioners' assertion that the cause of action arose in 1992 is self-serving as no
pieces of evidence was presented or even attached as supporting documents in
their petition to prove their claim. Worse, the petitioners could not even pinpoint
the exact moment of time of the destruction of their properties. 21

The petitioners' statement that there were already heavy rains since 1989 that
caused flooding in the area negates their previous claim that the cause of action
arose in 1992. If in fact there were already heavy rains since 1989, then it can also
be argued that prior to 1992, their properties were already damaged by the floods
and that would be the reckoning point of their cause of action. This further
establishes that their cause of action has already prescribed. Thus, while it may be
argued that the petitioners have a cause of action against the DPWH, the same has
already prescribed in view of Article 1146 of the Civil Code, viz.:
ART. 1146. The following actions must be instituted within four years:
(1) Upon an injury to the rights of the plaintiff;
(2) Upon a quasi-delict. (Emphasis ours)
Undeniably, the petitioners' money claims which were only filed with the DPWH in
2004 or even in 2001 had already prescribed.1âwphi1 As correctly pointed out by
the Office of the Solicitor General, "[i]t will be the height of injustice for respondent
DPWH to be confronted with stale claims, where verification on the plausibility of
the allegations remains difficult, either because the condition of the alleged
inundation of crops has changed, or the physical impossibility of accounting for the
lost and damaged crops due to the considerable lapse of time."22
On the other hand, "[l]aches has been defined as the failure or neglect, for an
unreasonable and unexplained length of time, to do that which, by exercising due
diligence could or should have been done earlier."23
In the case at bar, laches has set in as the elements24 thereof are present. Firstly,
the premature opening by the DPWH of the Project allegedly causing flash floods,
and damaging the petitioners' properties took place in 1989 or even in 1992.
Secondly, the petitioners took 15 years to assert their rights when they formally
filed a complaint in 2004 against the DPWH. Thirdly, as the petitioners failed to file
a formal suit for their claims before the COA, there is an apparent lack of notice
that would give the DPWH the opportunity to defend itself.
Under Commonwealth Act No. 327,25 as amended by Section 26 of Presidential
Decree No. 1445,26 which were the applicable laws at the time the cause of action
arose, the COA has primary jurisdiction over money claims against government
agencies and instrumentalities. Moreover, Rule II, Section 1 (b) of the 2009 Revised
Rules of Procedure of the COA27 specifically enumerated those matters falling
122
under COA's exclusive jurisdiction, which include "money claims due from or owing
to any government agency." Rule VIII, Section l (a) further provides that COA shall
have original jurisdiction over money claims against the Government, among
others. Therefore, the petitioners' money claims have prescribed and are barred by
laches for their failure to timely file the petition with the COA.
COA did not abuse its discretion in denying the petitioners' claims for damages
against the DPWH.
Even if the Court sets aside the technical and procedural issues in the interest of
substantive justice, the instant petition must be denied. The COA is endowed with
enough latitude to determine, prevent, and disallow irregular, unnecessary,
excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the
government's and, ultimately, the people's property. The exercise of its general
audit power is among the constitutional mechanisms that gives life to the check
and balance system inherent in our form of government. 28
In denying the petitioners' money claims against the DPWH, the COA did not abuse
the exercise of its discretion as its denial was grounded on facts and circumstances
that would warrant such denial arising from the following observations:
In her 5th Indorsement dated July 22, 2011, the ATL, DPWH, Cotabato
2nd Engineering District, interposed no objection to the claims for payment for
damaged crops allegedly caused by the construction of the [Project] but made
significant observations, among others, to wit:
3. That the names of claimants and other details in the attached List of Claims for
Crop Damages Affected by the Overflow of the Diversion Cut-Off Channel in
Tunggol, Pagalungan, Maguindanao, (Annexes C-1 to C-12) submitted by the IROW
Task Force, DPWH Central Office amounting to ₱122,049,550.00, were based on
and the same with that of the following three (3) reports:
3.1) Undated and Unsigned "List of Improvements Affected by the Overflow of the
Diversion Cut-Off Channel in Tunggol, Pagalungan, Maguindanao amounting to
₱122,049,550.00 (Annex "D" to Annex "D-4") with sub-heading, "NOTE: BASE[D] ON
THE ATTACHED AFFIDAVIT AND APPROVED DATA FROM ARMM" (Original List)
4. That in the above-mentioned paragraph (3.1), the claimants/owners declared
their lots as either cornland, riceland, lowland or marshyland as opposed to their

claim for crop damages for coconut trees, mango trees, coffee, jackfruits and
banana under paragraphs (3.2) and (3.3) and Annexes "C-1" to "C-12", mentioned
below.
5. That [in the] analysis of all lists with regards to the population density of plant
and fruit trees, it was computed that population density was only about 2-3 per
square meter. This means that the distance of every fruit tree trunk/clump to each
other is only about 2-3 meters, hence, in order for the fruit trees to be fruit
bearing, it would appear that their branches would already be interlocking with
each other. (Schedule 1)
6. That in view of the above, the total number of fruit trees per lot indicated in the
lists were determined to be only estimates and not the actual number/quantity
of fruit trees allegedly damaged.
7. That review of the lists of claimants disclosed that there are instances that two
(2) or more claimants are owners of the same lot number. (Schedule 2)
8. That [in the] tracing [of] the affected lots in the parcellary map, there were lots
which we believe the flooding of which should not be attributed to the
construction of the Cut-Off Channel but to the original and existing course of the
river. Moreover, said lots are not on the downstream of the project (Lots # 61, 73,
74, 75, 76, 78, 297, 291, 289, 288, 287, 286, 284, 281, 282, 279, 280, 276, 273, 274,
271, 270, 265, 263, 301, 302, 303, 304, 305, 306, 307, 308, 309, 379, 377, 380, and
378). The construction of the Cut-Off Channel was actually a relief to the upstream
which [do not] experience perennial flooding, but sadly a disaster to the
downstream portion. (See attached parcellary Map).
9. That there are listed lots which are not in the parcellary map. (Lot # 386, 1440,
1441, 1442, 1443 and 1444).
10. That all undated DECLARATION OF REAL PROPERTY submitted by the
owners/claimants in support of [their] claims for crop damages were all signed by
Municipal Assessor Babai M. Bangkulit of Datu Montawal, Maguindanao, which
we believe were issued only on April 12, 2007, the same date the Statements of
Tax Delinquency were signed by the aforementioned Municipal Assessor.
11. That [in the] tracing [of] the lots on the parcellary map, majority of the lots are
located on the side of the Municipality of Pagalungan, Maguindanao, and not in
the Municipality of Datu Montawal, Maguindanao. (See attached Parcellary Map).
123
13. That not a single copy of land title was submitted by the claimants to prove
that they are the legal owners and rightful claimants to the alleged crop
damages therein.
Finally, the then Cluster Director, Cluster D-Economic Services, National
Government Sector (NGS), this Commission, in her 8th Indorsement dated
December 15, 2011, stated that taking into account the fact that DPWH undertook
the construction of the [Project] in the discharge of its governmental function, it
cannot be held liable. In support of her position, she cited the decision of the
Supreme Court in the case of Torio vs. Fontanilla, G.R. No. L-29993 dated October
23, 1978, citing Palafox, et al. vs. Province of Ilocos Norte, et al., 102 Phil 1186
(1958).
After observing that there are conflicting claims between the petitioners and that
it is a primary consideration that a claim must be instituted by the proper party in
interest otherwise the same will fail, the then Cluster Director, Cluster D, NGS, this
Commission, recommended the dismissal of the Petition, subject to the final
determination by the Commission Proper.29 (Emphasis ours)
Absent any showing that COA capriciously, arbitrarily or whimsically exercised its
discretion that would tantamount to evasion of a positive duty or a virtual refusal
to perform the duty or to act at all in contemplation of law resulting to the
prejudice of the rights of the claimants, the Court believes that COA did not abuse,
much less gravely, its discretion in denying the claims of the petitioners.
Thus, the Court finds no grave abuse of discretion on the part of COA in denying
the petitioners' money claims for failure to present substantial evidence to prove
that their properties were damaged by floods due to the premature opening of the
Project of the DPWH. Without a doubt, the inconsistencies and discrepancies in the
evidence presented by the petitioners backed by the findings of COA lead only to
one inescapable conclusion: that there is no substantial evidence to prove the
petitioners' claims that would render the DPWH or the State liable for the amount
claimed.
In the absence of grave abuse of discretion, the factual findings of COA, which are
undoubtedly supported by the evidence on record, must be accorded great respect
and finality. COA, as the duly authorized agency to adjudicate money claims against
government agencies and instrumentalities has acquired special knowledge and
expertise in handling matters falling under its specialized jurisdiction.30
 124

Finally, it is the general policy of the Court to sustain the decision of administrative
authorities, especially one that was constitutionally created like herein respondent
COA, not only on the basis of the doctrine of separation of powers, but also of their
presumed expertise in the laws they are entrusted to enforce. It is, in fact, an oft-
repeated rule that findings of administrative agencies are accorded not only
respect but also finality when the decision and order are not tainted with
unfairness or arbitrariness that would amount to grave abuse of discretion. 31

WHEREFORE, the petition is DISMISSED. The Decision dated November 20, 2012
and Resolution dated February 14, 2014 of the Commission on Audit in COA CP
Case No. 2010-089 are hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 171953, October 21, 2015 ]
NATIONAL HOUSING AUTHORITY, PETITIONER, VS. ERNESTO ROXAS, RESPONDENT.
DECISION
BERSAMIN, J.:
The National Housing Authority (NHA), a government-owned and -controlled
corporation created and existing under Presidential Decree No. 757,[1] may sue and
be sued. However, no court should issue a writ of execution upon any monetary
judgment rendered against the NHA unless such monetary judgment is first
submitted to and passed upon by the Commission on Audit (COA).
The Case
Being challenged on appeal by the NHA is the adverse decision promulgated on
February 20, 2006,[2] whereby the Court of Appeals (CA) dismissed the NHA's
petition for certiorari brought to nullify the orders issued in Special Civil Action No.
93-060-MN entitled Ernesto Roxas v. National Housing Authority, et al. by the
Regional Trial Court (RTC), Branch 72, in Malabon City. The first order, dated May 3,
2002, had granted the motion for the issuance of the writ of execution filed by
respondent Ernesto Roxas.[3] The other order, dated January 6, 2003, had denied
the NHA's motion for reconsideration.[4] The NHA had also thereby assailed the writ
of execution consequently issued on February 24, 2003.[5] In its petition
for certiorari, the NHA insisted that the RTC had thereby committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
Antecedents
The NHA is charged, among others, with the development of the Dagat-dagatan
Development Project (project) situated in Navotas, Metro Manila.[6] On December
4, 1985, Roxas applied for commercial lots in the project, particularly Lot 9 and Lot
10 in Block 11, Area 3, Phase III A/B, with an area of 176 square meters, for the use
of his business of buying and selling gravel, sand and cement products.[7] The NHA
approved his application, and issued on December 6, 1985 the order of payment
respecting the lots. On December 27, 1985, the NHA issued the notice of award for
125
the lots in favor of Roxas,[8] at P1,500.00/square meter.[9] On the basis of the order
of payment and the notice of award, Roxas made his downpayment of
P79,200.00.[10] A relocation/reblocking survey resulted in the renumbering of Lot 9
to Lot 5 and Lot 10 to Lot 6 (subject lots).[11] He completed his payment for the
subject lots on December 20, 1991.
In the meanwhile, the NHA conducted a final subdivision project survey, causing
the increase in the area of the subject lots from 176 to 320 square meters. The
NHA informed Roxas about the increase in the area of the subject lots, and
approved the award of the additional area of 144 square meters to him at
P3,500.00/square meter.[12] Although manifesting his interest in acquiring the
additional area, he appealed for the reduction of the price to Pl,500.00/square
meter,[13] pointing out that Lot 5 and Lot 6 were a substitution unilaterally imposed
by the NHA that resulted in the increase of 144 square meters based on the
technical description, and that although he desired to purchase the increased area,
the purchase must be in accordance with the terms and conditions contained in the
order of payment and notice of award issued to him. After the NHA rejected his
appeal,[14] he commenced in the RTC this action for specific performance and
damages, with prayer for the issuance of a writ of preliminary injunction. He
amended the complaint[15] to compel the NHA to comply with the terms and
conditions of the order of payment and the notice of award.
The NHA countered in its answer[16] that Roxas' prayer to include in the original
contract the increase in lot measurement of 144 square meters was contrary to its
existing rules and regulation; that he could not claim more than what had been
originally awarded to him; and that at the very least, his right in the additional area
was limited only to first refusal.
On July 15, 1994, after trial, the RTC rendered judgment against the
NHA,[17] decreeing:
WHEREFORE, premises considered, judgment is hereby rendered in favor of
plaintiff Ernesto Roxas and against defendant NHA, represented by its General
Manager and its Dagat-dagatan Development Project Manager, as follows:
1. Declaring plaintiff Ernesto Roxas the legal awardee of subject lots 5 and 6 in the
full total area thereof of 320 sq. meters;
2. Ordering defendant NHA, thru its General Manager Robert P. Balao and the
project Manager for its Dagat-dagatan Development Project Evelyn V. Ramos, or
whoever shall be the incumbents of the positions at the time of the enforcement

hereof to execute the corresponding Contract to Sell for the entire area of subject
lots 5 and 6 totaling to 320 sq. meters at the cost of PI,500.00 per sq. meter under
the same terms and conditions as that provided for in the Order of Payment and
Notice of Award (Exhs. B and D), respectively, deducting whatever has already been
paid by plaintiff;
3. Ordering defendant NHA to pay plaintiff P30,000.00 by way of reasonable
Attorney's Fees.
The Writ of Preliminary Injunction issued in this case on January 31, 1994 is hereby
made permanent.
Costs against defendant NHA.
SO ORDERED.
The NHA appealed in due course, but the CA affirmed the judgment of the RTC,
prompting the NHA to seek to undo the adverse decision of the CA through its
petition for certiorari. On July 5, 2000, however, the Court dismissed the petition
for certiorari. It later denied the NHA's motion for reconsideration.[18]
On July 27, 2001, Roxas filed his motion for the issuance of the writ of
execution,[19] which the RTC granted on May 3, 2002.[20] The NHA sought
reconsideration, but its motion was denied on January 6, 2003. Accordingly, on
February 24, 2003, the RTC issued the writ of execution to enforce the final and
executory decision of July 15, 1994.[21]
In order to prevent the execution, the NHA brought another petition
for certiorari in the CA, docketed as C.A.-G.R. SP No. 76468, imputing to the RTC
grave abuse of discretion amounting to lack or excess of jurisdiction for ordering
the execution of the judgment.
On February 20, 2006, the CA dismissed the NFIA's petition for certiorari through
the presently assailed decision because it found that the RTC did not gravely abuse
its discretion amounting to lack or excess of jurisdiction in granting Roxas' motion
for the issuance of the writ of execution and in issuing the writ of execution.[22] The
CA observed that the NHA was a government-owned and -controlled corporation
whose funds were not exempt from garnishment or execution; and ruled that
Roxas did not need to first file his claim in the COA.
126
Issues
The NHA insists that the judgment of the RTC did not lie against it because its
submission to the litigation did not necessarily imply that the Government had
thereby given its consent to liability; and that the money judgment awarded to
Roxas could not be recovered by motion for execution but should have been first
filed in the COA.[23]
Roxas counters that the main relief under the final and executory judgment of the
RTC directed the NHA to execute the contract to sell the subject lots at the rate of
P1,500.00/square meter as provided for in the order of payment and the notice of
award. He claims that the award of attorney's fees in his favor was only incidental
to the main relief of specific performance; and argues that the Government
abandons its sovereign capacity and is treated like any other corporations
whenever it enters into a commercial transaction.[24]
Ruling of the Court
The appeal is partly meritorious.
First of all, the mantle of the State's immunity from suit did not extend to the NHA
despite its being a government-owned and -controlled corporation. Under Section
6(i) of Presidential Decree No. 757, which was its charter, the NHA could sue and
be sued. As such, the NHA was not immune from the suit of Roxas.
And, secondly, for purposes of the implementation of the writ of execution, it is
necessary to distinguish between, on the one hand, the main relief adjudicated in
the judgment of July 15, 1994, which was the decree of specific performance as to
the right of Roxas to acquire the subject lots at Pl,500.00/square meter as stated in
the original agreement between the parties, and, on the other, the secondary relief
for the attorney's fees of P30,000.00 to be paid by the NHA to Roxas.
Section 12 of Presidential Decree No. 757 has authorized the NHA to "determine,
establish and maintain the most feasible and effective program for the
management or disposition of specific housing or resettlement projects undertaken
by [it]", and "[u]nless otherwise decided by the Board, completed housing or
resettlement projects shall be managed and administered by [it]." The execution of
the contract to sell by the NHA conformably with the main relief under the
judgment would be in the ordinary course of the management or disposition of the
Dagat-dagatan Development Project undertaken by the NHA. In other words, the
NHA possessed the legal competence and authority to directly afford the main
 127

relief without Roxas needing to first submit to the COA the contract to sell for
review and approval. To maintain otherwise is to unconstitutionally grant to the
COA the power of judicial review in respect of the decision of a court of law.
However, settling or paying off the secondary relief for the attorney's fees of
£30,000.00, being a monetary obligation of the NHA, would not be in the usual
course of the activities of the NHA under its charter. That such relief was the
consequence of the suit that granted the main relief did not matter. Pursuant to
Section 26 of Presidential Decree No. 1445, Roxas should first bring it to the COA
prior to its enforcement against the NHA.[25] Indeed, Section 26 specifically vested
in the COA the power, authority and duty to examine, audit and settle "all debts
and claims of any sort" due from or owing to the Government, or any of its
subdivisions, agencies, or instrumentalities, including government-owned and
controlled corporations with original charters, viz.:
Section 26. General jurisdiction. The authority and powers of the Commission shall
extend to and comprehend all matters relating to auditing procedures, systems and
controls, the keeping of the general accounts of the Government, the preservation
of vouchers pertaining thereto for a period of ten years, the examination and
inspection of the books, records, and papers relating to those accounts; and the
audit and settlement of the accounts of all persons respecting funds or property
received or held by them in an accountable capacity, as well as the examination,
audit, and settlement of all debts and claims of any sort due from or owing to the
Government or any of its subdivisions, agencies and instrumentalities. The said
jurisdiction extends to all government-owned or controlled corporations,
including their subsidiaries, and other self-governing boards, commissions, or
agencies of the Government, and as herein prescribed, including non-
governmental entities subsidized by the government, those funded by donations
through the government, those required to pay levies or government share, and
those for which the government has put up a counterpart fund or those partly
funded by the government, (bold underscoring supplied for emphasis)
justify its exclusion from the operation of the law. In other words, there should be
no distinction in the application of a statute where none is indicated. Corollary to
this rule is the principle that where the law does not make any exception, the
courts may not exempt something therefrom, unless there is compelling reason to
the contrary.[27]
There is no question that the NHA could sue or be sued, and thus could be held
liable under the judgment rendered against it. But the universal rule remains to be
that the State, although it gives its consent to be sued either by general or special
law, may limit the claimant's action only up to the completion of proceedings
anterior to the stage of execution. In other words, the power of the court ends
when the judgment is rendered because government funds and property may not
be seized pursuant to writs of execution or writs of garnishment to satisfy such
judgments. The functions and public services of the State cannot be allowed to be
paralyzed or disrupted by the diversion of public fund from their legitimate and
specific objects, and as appropriated by law. The rule is based on obvious
considerations of public policy. Indeed, the disbursements of public funds must be
covered by the corresponding appropriation as required by law.[28]
WHEREFORE, the Court PARTLY GRANTS the petition for review on certiorari;
and MODIFIES the writ of execution dated February 24, 2003 by enjoining the
respondent to file his claim for attorney's fees with the Commission on Audit
pursuant to Presidential Decree No. 1445.
SO ORDERED.

As the text of the legal provision plainly shows, the audit jurisdiction of the COA
extends to all government-owned or -controlled corporations, their subsidiaries,
and other self-governing boards, commissions, or agencies of the Government, as
well as to all non-governmental entities subsidized by the Government, or funded
by donations through the Government, or required to pay levies or government
share, or for which the Government has put up a counterpart fund, or those partly
funded by the Government. There is no distinction as to the class of claims. Ubi lex
non distinguish nee nos distinguere debemos.[26] Indeed, a general term or phrase
should not be reduced into parts and one part distinguished from the other so as to

EN BANC
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE
in his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO
S. AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign
Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President,
. HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in
Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0.
DOMINGO, Commandant of Armed Forces of the Philippines Command and LT.
GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013
Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7 of
A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental
Cases (Rules), involving violations of environmental laws and regulations in relation
to the grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern
Philippines) language which means "long reef exposed at low tide." Tubbataha is
composed of two huge coral atolls - the north atoll and the south atoll - and the
Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the
atolls. The reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan.1
128
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation
No. 306 issued by President Corazon C. Aquino on August 11, 1988. Located in the
middle of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral Triangle, the global center of marine
biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one
of the Philippines' oldest ecosystems, containing excellent examples of pristine
reefs and a high diversity of marine life. The 97,030-hectare protected marine park
is also an important habitat for internationally threatened and endangered marine
species. UNESCO cited Tubbataha's outstanding universal value as an important
and significant natural habitat for in situ conservation of biological diversity; an
example representing significant on-going ecological and biological processes; and
an area of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known
as the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the
protection and conservation of the globally significant economic, biological,
sociocultural, educational and scientific values of the Tubbataha Reefs into
perpetuity for the enjoyment of present and future generations." Under the "no-
take" policy, entry into the waters of TRNP is strictly regulated and many human
activities are prohibited and penalized or fined, including fishing, gathering,
destroying and disturbing the resources within the TRNP. The law likewise created
the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy.
In December 2012, the US Embassy in the Philippines requested diplomatic
clearance for the said vessel "to enter and exit the territorial waters of the
Philippines and to arrive at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty."4 On January 6, 2013, the ship left
Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel
in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call
in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu
Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of Palawan. No cine was injured in the
incident, and there have been no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement.5 Likewise, US Ambassador
to the Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign
Affairs (DFA) on February 4, "reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretazy Albert F. del Rosario that the United States will
provide appropriate compensation for damage to the reef caused by the ship." 6 By
March 30, 2013, the US Navy-led salvage team had finished removing the last piece
of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others, including minors
or generations yet unborn, filed the present petition agairtst Scott H. Swift in his
capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine
Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents");
President Benigno S. Aquino III in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and Natural
Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in
Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard
Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-
Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively
the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo,
Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
Tawi, which events violate their constitutional rights to a balanced and healthful
ecology. They also seek a directive from this Court for the institution of civil,
administrative and criminal suits for acts committed in violation of environmental
laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents
under R.A. No. 10067: unauthorized entry (Section 19); non-payment of
conservation fees (Section 21 ); obstruction of law enforcement officer (Section
30); damages to the reef (Section 20); and destroying and disturbing resources
(Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting
129
Forces Agreement (VFA) which they want this Court to nullify for being
unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the
petition, to wit: WHEREFORE, in view of the foregoing, Petitioners respectfully pray
that the Honorable Court: 1. Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan,
which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and
desist all operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as
well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under
'Balikatan' because of the absence of clear guidelines, duties, and liability
schemes for breaches of those duties, and require Respondents to
assume responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting Forces Agreement
in particular.
d. Temporarily define and describe allowable activities of ecotourism,
diving, recreation, and limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until
further orders of the Court;
3. After due proceedings, render a Decision which shall include, without
limitation:
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, "to forthwith negotiate with the
United States representatives for the appropriate agreement on
[environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring officers and
individuals to the full extent of the law, and to make such proceedings
public;
c. Declare that Philippine authorities may exercise primary and exclusive
criminal jurisdiction over erring U.S. personnel under the circumstances
of this case;
d. Require Respondents to pay just and reasonable compensation in the
settlement of all meritorious claims for damages caused to the
Tubbataha Reef on terms and conditions no less severe than those
applicable to other States, and damages for personal injury or death, if
such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of
witnesses and in the collection and production of evidence, including
seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to
notify each other of the disposition of all cases, wherever heard, related
to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration,
repair, salvage or post salvage plan or plans, including cleanup plans
covering the damaged area of the Tubbataha Reef absent a just
settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations
in accordance with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a
deposit to the TRNP Trust Fund defined under Section 17 of RA 10067 as
a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas
affected by the grounding of the Guardian in light of Respondents'
experience in the Port Royale grounding in 2009, among other similar
grounding incidents;
130
k. Require Respondents to regularly publish on a quarterly basis and in
the name of transparency and accountability such environmental damage
assessment, valuation, and valuation methods, in all stages of
negotiation;
l. Convene a multisectoral technical working group to provide scientific
and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National
Defense, and the Department of Environment and Natural Resources to
review the Visiting Forces Agreement and the Mutual Defense Treaty to
consider whether their provisions allow for the exercise of erga omnes
rights to a balanced and healthful ecology and for damages which follow
from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for
purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating the
preemptory norm of nondiscrimination incorporated as part of the law of
the land under Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all
other respects; and
4. Provide just and equitable environmental rehabilitation measures and
such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex parte
against the US respondents.9
Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and
ocular inspection and production orders, respondents assert that: ( 1) the grounds
relied upon for the issuance of a TEPO or writ of Kalikasan have become fait
accompli as the salvage operations on the USS Guardian were already completed;
(2) the petition is defective in form and substance; (3) the petition improperly
raises issues involving the VFA between the Republic of the Philippines and the
United States of America; and ( 4) the determination of the extent of responsibility
of the US Government as regards the damage to the Tubbataha Reefs rests
exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to
file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized grievance."11 However, the
rule on standing is a procedural matter which this Court has relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of
paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law." We
declared that the right to a balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and polittcal rights guaranteed in
the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.1âwphi1 Such right
carries with it the correlative duty to refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own
and future generations. Thus:
131
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a
class suit. Their personality to sue in behalf of the succeeding generations can only
be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the "rhythm and harmony of nature." Nature means the
created world in its entirety. Such rhythm and harmony indispensably include, inter
alia, the judicious disposition, utilization, management, renewal and conservation
of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and
utilization be equitably accessible to the present a:: well as future generations.
Needless to say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full 1:njoyment of a balanced and healthful ecology.
Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to
minors and generations yet unborn, is now enshrined in the Rules which allows the
filing of a citizen suit in environmental cases. The provision on citizen suits in the
Rules "collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental
question of whether this Court has jurisdiction over the US respondents who did
not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State,17is expressly provided in Article XVI of the
1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state
immunity from suit, as follows:
The rule that a state may not be sued without its consent, now · expressed in
Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted

principles of international law that we have adopted as part of the law of our land
under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, the
state is automatically obligated to comply with these principles in its relations with
other states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that ''there can be no legal right against the
authority which makes the law on which the right depends." [Kawanakoa v.
Polybank, 205 U.S. 349] There are other practical reasons for the enforcement of
the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals and cannot assert jurisdiction over
one another. A contrary disposition would, in the language of a celebrated case,
"unduly vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to perform an affirmative
act to satisfy the same,. such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA
120] In such a situation, the state may move to dismiss the comp.taint on the
ground that it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh
Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the
immunity of foreign states from the jurisdiction of local courts, as follows:
132
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the
personal immunity of a foreign sovereign from suit and, with the emergence of
democratic states, made to attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign capacity. If the
acts giving rise to a suit arc those of a foreign government done by its foreign
agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign
from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim -par in parem,
non habet imperium -that all states are soverr~ign equals and cannot assert
jurisdiction over one another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must be regarded as
being against the state itself, although it has not been formally
impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the
privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise
of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein
involved a Filipino employed at Clark Air Base who was arrested following a buy-
bust operation conducted by two officers of the US Air Force, and was eventually
dismissed from his employment when he was charged in court for violation of R.A.
No. 6425. In a complaint for damages filed by the said employee against the
military officers, the latter moved to dismiss the case on the ground that the suit
was against the US Government which had not given its consent. The RTC denied
the motion but on a petition for certiorari and prohibition filed before this Court,
we reversed the RTC and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official functions when they
conducted the buy-bust operation against the complainant and thereafter testified
against him at his trial. It follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts imputable to their
principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in
the courts of another State without the former's consent or waiver has evolved

into a restrictive doctrine which distinguishes sovereign and governmental acts
(Jure imperil") from private, commercial and proprietary acts (Jure gestionis).
Under the restrictive rule of State immunity, State immunity extends only to acts
Jure imperii. The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity
principle, thus:
It is a different matter where the public official is made to account in his capacity as
such for acts contrary to law and injurious to the rights of plaintiff. As was clearly
set forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al.
vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights of the plaintiff, under
an unconstitutional act or under an assumption of authority which he does not
have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an
injustice.
The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises
where the public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in
their official capacity as commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military duties. Considering that
133
the satisfaction of a judgment against said officials will require remedial actions
and appropriation of funds by the US government, the suit is deemed to be one
against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and caused damage to the TRNP reef
system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions of their flag State, Art.
31 of the UNCLOS creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State regarding passage
through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS,
as a matter of long-standing policy the US considers itself bound by customary
international rules on the "traditional uses of the oceans" as codified in UNCLOS, as
can be gleaned from previous declarations by former Presidents Reagan and
Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise
Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid
customary norms governing the uses of the sea, the exploitation of its resources,
and the exercise of jurisdiction over maritime regimes. It is a branch of public
international law, regulating the relations of states with respect to the uses of the
oceans."28 The UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in
1984 but came into force on November 16, 1994 upon the submission of the 60th
ratification.
The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters is one of the oldest
customary principles of international law.30 The UNCLOS gives to the coastal State
sovereign rights in varying degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone,
and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.31

Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international law.
Such sovereignty extends to the air space over the territorial sea as well as to its
bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave
the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government
ship operated for non-commercial purposes with the laws and regulations of the
coastal State concerning passage through the territorial sea or with the provisions
of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial
purposes
With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other
government ships operated for non-commercial purposes. (Emphasis supplied.) A
foreign warship's unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the above provisions may
apply. But what if the offending warship is a non-party to the UNCLOS, as in this
case, the US?
134
An overwhelming majority - over 80% -- of nation states are now members of
UNCLOS, but despite this the US, the world's leading maritime power, has not
ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and
drafting, the U.S. delegation ultimately voted against and refrained from signing it
due to concerns over deep seabed mining technology transfer provisions contained
in Part XI. In a remarkable, multilateral effort to induce U.S. membership, the bulk
of UNCLOS member states cooperated over the succeeding decade to revise the
objection.able provisions. The revisions satisfied the Clinton administration, which
signed the revised Part XI implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI implementing agreement to
the Senate requesting its advice and consent. Despite consistent support from
President Clinton, each of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required for the President
to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the
108th and 110th Congresses, its progress continues to be hamstrung by significant
pockets of political ambivalence over U.S. participation in international institutions.
Most recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting
out" UNCLOS for full Senate consideration among his highest priorities. This did not
occur, and no Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President
Reagan on March 10, 1983 that the US will "recognize the rights of the other ,
states in the waters off their coasts, as reflected in the convention [UNCLOS], so
long as the rights and freedom of the United States and others under international
law are recognized by such coastal states", and President Clinton's reiteration of
the US policy "to act in a manner consistent with its [UNCLOS] provisions relating to
traditional uses of the oceans and to encourage other countries to do likewise."
Since Article 31 relates to the "traditional uses of the oceans," and "if under its
policy, the US 'recognize[s] the rights of the other states in the waters off their
coasts,"' Justice Carpio postulates that "there is more reason to expect it to
recognize the rights of other states in their internal waters, such as the Sulu Sea in
this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal
to join the UN CLOS was centered on its disagreement with UN CLOS' regime of
deep seabed mining (Part XI) which considers the oceans and deep seabed

commonly owned by mankind," pointing out that such "has nothing to do with its
[the US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps
publicly endorses the ratification of the UNCLOS, as shown by the following
statement posted on its official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for territorial
seas; codifies innocent passage, transit passage, and archipelagic sea lanes passage
rights; works against "jurisdictiomtl creep" by preventing coastal nations from
expanding their own maritime zones; and reaffirms sovereign immunity of
warships, auxiliaries anJ government aircraft.
Economically, accession to the Convention would support our national interests by
enhancing the ability of the US to assert its sovereign rights over the resources of
one of the largest continental shelves in the world. Further, it is the Law of the Sea
Convention that first established the concept of a maritime Exclusive Economic
Zone out to 200 nautical miles, and recognized the rights of coastal states to
conserve and manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS
does not mean that the US will disregard the rights of the Philippines as a Coastal
State over its internal waters and territorial sea. We thus expect the US to bear
"international responsibility" under Art. 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to
imagine that our long-time ally and trading partner, which has been actively
supporting the country's efforts to preserve our vital marine resources, would shirk
from its obligation to compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend a Government
exercising leadership in international affairs, unwilling to comply with the UNCLOS
directive for all nations to cooperate in the global task to protect and preserve the
marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis,
directly or through competent international organizations, in formulating and
elaborating international rules, standards and recommended practices and
135
procedures consistent with this Convention, for the protection and preservation of
the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond
dispute. Although the said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the.latter's territorial sea, the flag
States shall be required to leave the territorial '::;ea immediately if they flout the
laws and regulations of the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel operated for non-
commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA.
Likewise, they invoke federal statutes in the US under which agencies of the US
have statutorily waived their immunity to any action. Even under the common law
tort claims, petitioners asseverate that the US respondents are liable for
negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between
the US and the Philippines in the region. It provides for the guidelines to govern
such visits of military personnel, and further defines the rights of the United States
and the Philippine government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment, materials and
supplies.36 The invocation of US federal tort laws and even common law is thus
improper considering that it is the VF A which governs disputes involving US
military ships and crew navigating Philippine waters in pursuance of the objectives
of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal
jurisdiction and not to special civil actions such as the present petition for issuance
of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules
that a criminal case against a person charged with a violation of an environmental
law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of
the writ of kalikasan shall not preclude the filing of separate civil, criminal or
administrative actions.

In any case, it is our considered view that a ruling on the application or non-
application of criminal jurisdiction provisions of the VF A to US personnel who may
be found responsible for the grounding of the USS Guardian, would be premature
and beyond the province of a petition for a writ of Kalikasan. We also find it
unnecessary at this point to determine whether such waiver of State immunity is
indeed absolute. In the same vein, we cannot grant damages which have resulted
from the violation of environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines under R.A. No. 10067, in a
separate civil suit or that deemed instituted with the criminal action charging the
same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted
for decision, the court shall render judgment granting or denying the privilege of
the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation of
environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private
person or entity to protect, preserve, rehabilitate or restore the
environment;
(c) Directing the respondent public official, government agency, private
person or entity to monitor strict compliance with the decision and
orders of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of the
final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced
and healthful ecology or to the protection, preservation, rehabilitation or
restoration of the environment, except the award of damages to
individual petitioners. (Emphasis supplied.)
136
We agree with respondents (Philippine officials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse from
this Court. But insofar as the directives to Philippine respondents to protect and
rehabilitate the coral reef stn icture and marine habitat adversely affected by the
grounding incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS Guardian from the coral
reef. However, we are mindful of the fact that the US and Philippine governments
both expressed readiness to negotiate and discuss the matter of compensation for
the damage caused by the USS Guardian. The US Embassy has also declared it is
closely coordinating with local scientists and experts in assessing the extent of the
damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the
Rules. As can be gleaned from the following provisions, mediation and settlement
are available for the consideration of the parties, and which dispute resolution
methods are encouraged by the court, to wit:
RULE3
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court
shall inquire from the parties if they have settled the dispute; otherwise, the court
shall immediately refer the parties or their counsel, if authorized by their clients, to
the Philippine Mediation Center (PMC) unit for purposes of mediation. If not
available, the court shall refer the case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days
from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration
of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the court
may refer the case to the branch clerk of court for a preliminary conference for the
following purposes:
(a) To assist the parties in reaching a settlement;

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and
their counsels under oath, and they shall remain under oath in all pre-trial
conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement
of the dispute. The judge may issue a consent decree approving the agreement
between the parties in accordance with law, morals, public order and public policy
to protect the right of the people to a balanced and healthful ecology.
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings
before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu Airport
Reef Runway and remained stuck for four days. After spending $6.5 million
restoring the coral reef, the US government was reported to have paid the State of
Hawaii $8.5 million in settlement over coral reef damage caused by the
grounding.38
To underscore that the US government is prepared to pay appropriate
compensation for the damage caused by the USS Guardian grounding, the US
Embassy in the Philippines has announced the formation of a US interdisciplinary
scientific team which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha, based on
assessments by Philippine-based marine scientists." The US team intends to "help
assess damage and remediation options, in coordination with the Tubbataha
Management Office, appropriate Philippine government entities, non-
governmental organizations, and scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the
violator is also a major relief that may be obtained under a judgment rendered in a
citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection, preservation or rehabilitation of
the environment and the payment of attorney's fees, costs of suit and other
litigation expenses. It may also require the violator to submit a program of
137
rehabilitation or restoration of the environment, the costs of which shall be borne
by the violator, or to contribute to a special trust fund for that purpose subject to
the control of the court.1âwphi1
In the light of the foregoing, the Court defers to the Executive Branch on the
matter of compensation and rehabilitation measures through diplomatic channels.
Resolution of these issues impinges on our relations with another State in the
context of common security interests under the VFA. It is settled that "[t]he
conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative-"the political" --departments of the
government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition
to order a review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA
was duly concurred in by the Philippine Senate and has been recognized as a treaty
by the United States as attested and certified by the duly authorized representative
of the United States government. The VF A being a valid and binding agreement,
the parties are required as a matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is not the proper remedy to
assail the constitutionality of its provisions. WHEREFORE, the petition for the
issuance of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
ARIGO vs. SWIFT
FACTS:
In 2013, the USS Guardian of the US Navy ran aground on an area near the
Tubbataha Reefs, a marine habitat of which entry and certain human activities are
prevented and afforded protection by a Philippine law. The grounding incident
prompted the petitioners to seek for issuance of Writ of Kalikasan with TEPO from
the SC.

Among those impleaded are US officials in their capacity as commanding officers of
the US Navy. As petitioners argued, they were impleaded because there was a
waiver of immunity from suit between US and PH pursuant to the VFA terms.
Petitioners claimed that the grounding, salvaging and post-salvaging operations of
the USS Guardian violated their constitutional rights to a balanced and healthful
ecology since these events caused and continue to cause environmental damage of
such magnitude as to affect other provinces surrounding the Tubbataha Reefs.
Aside from damages, they sought a directive from the SC for the institution of civil,
administrative and criminal suits for acts committed in violation of environmental
laws and regulations in connection with the grounding incident. They also prayed
for the annulment of some VFA provisions for being unconstitutional.
ISSUE: Whether or not the US Government can be sued in this case
HELD:
The general rule on state’s immunity from suit applies in this case.
First, any waiver of State immunity under the VFA pertains only
to criminal jurisdiction and not to special civil actions such as for the issuance of the
writ of kalikasan. Hence, contrary to petitioners’ claim, the US government could
not be deemed to have waived its immunity from suit.
Second, the US respondents were sued in their official capacity as commanding
officers of the US Navy who have control and supervision over the USS Guardian
and its crew. Since the satisfaction of any judgment against these officials would
require remedial actions and the appropriation of funds by the US government, the
suit is deemed to be one against the US itself. Thus, the principle of State Immunity
– in correlation with the principle of States as sovereign equals “par in parem non
habet non imperium” – bars the exercise of jurisdiction by the court over their
persons.
However, The US government is liable for damages in relation to the grounding
incident under the customary laws of navigation.
The conduct of the US in this case, when its warship entered a restricted area in
violation of RA 10067 and caused damage to the TRNP reef system, brings the
138
matter within the ambit of Article 31 of the UNCLOS. While historically, warships
enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the
UNCLOS creates an exception to this rule in cases where they fail to comply with
the rules and regulations of the coastal State regarding passage through the latter’s
internal waters and the territorial sea.
Although the US to date has not ratified the UNCLOS, as a matter of long-standing
policy, the US considers itself bound by customary international rules on the
“traditional uses of the oceans”, which is codified in UNCLOS.
As to the non-ratification by the US, it must be noted that the US’ refusal to join the
UNCLOS was centered on its disagreement with UNCLOS’ regime of deep seabed
mining (Part XI) which considers the oceans and deep seabed commonly owned by
mankind. Such has nothing to do with the acceptance by the US of customary
international rules on navigation.
Hence, non-membership in the UNCLOS does not mean that the US will disregard
the rights of the Philippines as a Coastal State over its internal waters and
territorial sea. It is thus expected of the US to bear “international responsibility”
under Art. 31 in connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs.
MOST REV. PEDRO ARIGO, et. al., Petitioners,
vs.
SCOTT H. SWIFT, et. al., Respondents.
G.R. No. 206510 September 16, 2014
PONENTE: Villarama
TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit
FACTS:
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy.
In December 2012, the US Embassy in the Philippines requested diplomatic
clearance for the said vessel “to enter and exit the territorial waters of the

Philippines and to arrive at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty.” On January 6, 2013, the ship left
Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel
in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call
in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu
Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of Palawan. No one was injured in the
incident, and there have been no reports of leaking fuel or oil.
Petitioners claim that the grounding, salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo,
Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
Tawi, which events violate their constitutional rights to a balanced and healthful
ecology.
ISSUES:
Whether or not petitioners have legal standing.
Whether or not US respondents may be held liable for damages caused by USS
Guardian.
Whether or not the waiver of immunity from suit under VFA applies in this case.
HELD:
First issue: YES.
Petitioners have legal standing
Locus standi is “a right of appearance in a court of justice on a given question.”
Specifically, it is “a party’s personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result” of the act being challenged, and
“calls for more than just a generalized grievance.” However, the rule on standing is
a procedural matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires,
139
such as when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount public
interest.
In the landmark case of Oposa v. Factoran, Jr., we recognized the “public right” of
citizens to “a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law.” We
declared that the right to a balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and polittcal rights guaranteed in
the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries
with it the correlative duty to refrain from impairing the environment.
On the novel element in the class suit filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own
and future generations.
Second issue: YES.
The US respondents were sued in their official capacity as commanding officers of
the US Navy who had control and supervision over the USS Guardian and its crew.
The alleged act or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were performing official military
duties. Considering that the satisfaction of a judgment against said officials will
require remedial actions and appropriation of funds by the US government, the suit
is deemed to be one against the US itself. The principle of State immunity therefore
bars the exercise of jurisdiction by this Court over the persons of respondents
Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and caused damage to the TRNP reef
system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions of their flag State, Art.
31 of the UNCLOS creates an exception to this rule in cases where they fail to

comply with the rules and regulations of the coastal State regarding passage
through the latter’s internal waters and the territorial sea.
In the case of warships, as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:
Article 30: Non-compliance by warships with the laws and regulations of the
coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave
the territorial sea immediately.
Article 31: Responsibility of the flag State for damage caused by a warship or other
government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government
ship operated for non-commercial purposes with the laws and regulations of the
coastal State concerning passage through the territorial sea or with the provisions
of this Convention or other rules of international law.
Article 32: Immunities of warships and other government ships operated for non-
commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other
government ships operated for non-commercial purposes. A foreign warship’s
unauthorized entry into our internal waters with resulting damage to marine
resources is one situation in which the above provisions may apply.
But what if the offending warship is a non-party to the UNCLOS, as in this case, the
US?
According to Justice Carpio, although the US to date has not ratified the UNCLOS,
as a matter of long-standing policy the US considers itself bound by customary
international rules on the “traditional uses of the oceans” as codified in UNCLOS.
140
Moreover, Justice Carpio emphasizes that “the US refusal to join the UNCLOS was
centered on its disagreement with UNCLOS” regime of deep seabed mining (Part
XI) which considers the oceans and deep seabed commonly owned by mankind,”
pointing out that such “has nothing to do with its the US’ acceptance of customary
international rules on navigation.”
The Court also fully concurred with Justice Carpio’s view that non-membership in
the UNCLOS does not mean that the US will disregard the rights of the Philippines
as a Coastal State over its internal waters and territorial sea. We thus expect the US
to bear “international responsibility” under Art. 31 in connection with the USS
Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading partner, which has been
actively supporting the country’s efforts to preserve our vital marine resources,
would shirk from its obligation to compensate the damage caused by its warship
while transiting our internal waters. Much less can we comprehend a Government
exercising leadership in international affairs, unwilling to comply with the UNCLOS
directive for all nations to cooperate in the global task to protect and preserve the
marine environment as provided in Article 197 of UNCLOS
Article 197: Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis,
directly or through competent international organizations, in formulating and
elaborating international rules, standards and recommended practices and
procedures consistent with this Convention, for the protection and preservation of
the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond
dispute. Although the said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the latter’s territorial sea, the flag
States shall be required to leave the territorial sea immediately if they flout the
laws and regulations of the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel operated for non-
commercial purposes under Article 31.
Third issue: NO.
 141

The waiver of State immunity under the VF A pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a
criminal case against a person charged with a violation of an environmental law is
to be filed separately.

The Court considered a view that a ruling on the application or non-application of

criminal jurisdiction provisions of the VFA to US personnel who may be found
responsible for the grounding of the USS Guardian, would be premature and
beyond the province of a petition for a writ of Kalikasan.

The Court also found unnecessary at this point to determine whether such waiver
of State immunity is indeed absolute. In the same vein, we cannot grant damages
which have resulted from the violation of environmental laws. The Rules allows the
recovery of damages, including the collection of administrative fines under R.A. No.
10067, in a separate civil suit or that deemed instituted with the criminal action
charging the same violation of an environmental law.

EN BANC
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his
capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate
President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader,
SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf
of the President of the Philippines, Respondents.
G.R. No. 171246 April 20, 2006
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even
in the early history of republican thought, however, it has been recognized that the
head of government may keep certain information confidential in pursuit of the
public interest. Explaining the reason for vesting executive power in only one
magistrate, a distinguished delegate to the U.S. Constitutional Convention said:
"Decision, activity, secrecy, and dispatch will generally characterize the proceedings
of one man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be
diminished."1
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O. 464) last
September 28, 2005. They thus pray for its declaration as null and void for being
unconstitutional.
142
In resolving the controversy, this Court shall proceed with the recognition that the
issuance under review has come from a co-equal branch of government, which
thus entitles it to a strong presumption of constitutionality. Once the challenged
order is found to be indeed violative of the Constitution, it is duty-bound to declare
it so. For the Constitution, being the highest expression of the sovereign will of the
Filipino people, must prevail over any issuance of the government that contravenes
its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and employees of the executive
department, bureaus, and offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department for them to appear on
September 29, 2005 as resource speakers in a public hearing on the railway project
of the North Luzon Railways Corporation with the China National Machinery and
Equipment Group (hereinafter North Rail Project). The public hearing was sparked
by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff
for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence
Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to
attend as resource persons in a public hearing scheduled on September 28, 2005
on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered
on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of
Worms that Show Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005
entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege
Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal – Resolution Directing the Committee on National Defense and

Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on
the Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate
Resolution No. 295 filed by Senator Biazon – Resolution Directing the Committee
on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on
the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the
AFP Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27,
2005, requested for its postponement "due to a pressing operational situation that
demands [his utmost personal attention" while "some of the invited AFP officers
are currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have been
invited" in order to "afford said officials ample time and opportunity to study and
prepare for the various issues so that they may better enlighten the Senate
Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll
preparations and arrangements as well as notices to all resource persons were
completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 from the
President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting
that the hearing on the NorthRail project be postponed or cancelled until a copy of
the report of the UP Law Center on the contract agreements relative to the project
had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of
the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege
and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in
Aid of Legislation Under the Constitution, and For Other Purposes,"7 which,
pursuant to Section 6 thereof, took effect immediately. The salient provisions of
the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance
with Article VI, Section 22 of the Constitution and to implement the Constitutional
143
provisions on the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch of the government
shall secure the consent of the President prior to appearing before either House of
Congress.
When the security of the State or the public interest so requires and the President
so states in writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards
for Public Officials and Employees provides that Public Officials and Employees shall
not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public
interest.
Executive privilege covers all confidential or classified information between the
President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public official
covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May
1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995; Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties
and executive agreements (Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department
heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive
privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher
and such other officers who in the judgment of the Chief of the PNP are covered by
the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All public
officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that
officials of the Executive Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same without the consent of
the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled
date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator
Biazon, Chairperson of the Committee on National Defense and Security, informing
him "that per instruction of [President Arroyo], thru the Secretary of National
Defense, no officer of the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval from the President" and
"that no approval has been granted by the President to any AFP officer to appear
before the public hearing of the Senate Committee on National Defense and
Security scheduled [on] 28 September 2005."
144
Despite the communications received from Executive Secretary Ermita and Gen.
Senga, the investigation scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all
the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan
were relieved from their military posts and were made to face court martial
proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive
Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials: Light Railway Transit
Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez,
Department of Transportation and Communication (DOTC) Undersecretary Guiling
Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways
General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases
Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary
Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing
E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were filed before this Court challenging the
constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives
Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador
and Teodoro Casino, Courage, an organization of government employees, and
Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the
promotion of justice, democracy and peace, all claiming to have standing to file the
suit because of the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being unconstitutional;
that respondent Executive Secretary Ermita, in his capacity as Executive Secretary
and alter-ego of President Arroyo, be prohibited from imposing, and threatening to
impose sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and
impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges
that E.O. 464 infringes on its right as a political party entitled to participate in
governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and

duties as members of Congress to conduct investigation in aid of legislation and
conduct oversight functions in the implementation of laws; Courage alleges that
the tenure of its members in public office is predicated on, and threatened by, their
submission to the requirements of E.O. 464 should they be summoned by
Congress; and CODAL alleges that its members have a sworn duty to uphold the
rule of law, and their rights to information and to transparent governance are
threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional
rights as a citizen, taxpayer and law practitioner, are affected by the enforcement
of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being
unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as
a coalition of 17 legal resource non-governmental organizations engaged in
developmental lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens of the Philippines
and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right
which was denied to the public by E.O. 464,13 prays, that said order be declared
null and void for being unconstitutional and that respondent Executive Secretary
Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital
interest in the resolution of the issue of the validity of E.O. 464 for it stands to
suffer imminent and material injury, as it has already sustained the same with its
continued enforcement since it directly interferes with and impedes the valid
exercise of the Senate’s powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly
elected into the Philippine Senate and House of Representatives, filed a similar
petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it
is affected by the challenged E.O. 464 because it hampers its legislative agenda to
be implemented through its members in Congress, particularly in the conduct of
inquiries in aid of legislation and transcendental issues need to be resolved to avert
a constitutional crisis between the executive and legislative branches of the
government.
145
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military officers to attend the hearing on
the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order
No. 464, th[e] Headquarters requested for a clearance from the President to allow
[them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the
hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture
and Food and the Blue Ribbon Committee on the alleged mismanagement and use
of the fertilizer fund under the Ginintuang Masaganang Ani program of the
Department of Agriculture (DA), several Cabinet officials were invited to the
hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but
most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director
Norlito R. Gicana,17 and those from the Department of Budget and
Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M.
Gonzalez20 and Department of Interior and Local Government Undersecretary
Marius P. Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to
attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the
Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and the
Integrated Bar of the Philippines as the official organization of all Philippine
lawyers, all invoking their constitutional right to be informed on matters of public
interest, filed their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining
respondents from implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents committed
grave abuse of discretion in implementing E.O. 464 prior to its publication in the
Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464
 146

violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. II, Sec. 2837
Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art.
XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy Respondents Executive Secretary Ermita et al., on the other hand, pray in their
that calls for judicial review was not taken up; instead, the parties were instructed consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions
to discuss it in their respective memoranda. for lack of merit.

After the conclusion of the oral arguments, the parties were directed to submit The Court synthesizes the issues to be resolved as follows:
their respective memoranda, paying particular attention to the following
propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming
1. Whether E.O. 464 contravenes the power of inquiry vested in
that it is not, it is unconstitutional as applied in four instances, namely: (a) the so
Congress;
called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of
the ISAFP; and (d) the investigation on the Venable contract.22
2. Whether E.O. 464 violates the right of the people to information on
matters of public concern; and
Petitioners in G.R. No. 16966023
and G.R. No. 16977724
filed their memoranda on
March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs
the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any 3. Whether respondents have committed grave abuse of discretion when
memorandum. they implemented E.O. 464 prior to its publication in a newspaper of
general circulation.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension
to file memorandum27 was granted, subsequently filed a manifestation28 dated Essential requisites for judicial review
March 14, 2006 that it would no longer file its memorandum in the interest of
having the issues resolved soonest, prompting this Court to issue a Resolution Before proceeding to resolve the issue of the constitutionality of E.O. 464,
reprimanding them.29 ascertainment of whether the requisites for a valid exercise of the Court’s power of
judicial review are present is in order.
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Like almost all powers conferred by the Constitution, the power of judicial review is
Art. VI, Sec. 2130 subject to limitations, to wit: (1) there must be an actual case or controversy calling
for the exercise of judicial power; (2) the person challenging the act must have
standing to challenge the validity of the subject act or issuance; otherwise stated,
Art. VI, Sec. 2231
he must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3) the
Art. VI, Sec. 132 question of constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.39
Art. XI, Sec. 133
Except with respect to the requisites of standing and existence of an actual case or
Art. III, Sec. 734 controversy where the disagreement between the parties lies, discussion of the
rest of the requisites shall be omitted.
Art. III, Sec. 435
Standing
Art. XIII, Sec. 16 36

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos.
169659, 169660 and 169667 make it clear that they, adverting to the non-
appearance of several officials of the executive department in the investigations
called by the different committees of the Senate, were brought to vindicate the
constitutional duty of the Senate or its different committees to conduct inquiry in
aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power,
and privilege of the House of Representatives which had been effectively impaired
by E.O. 464, there being no mention of any investigation called by the House of
Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing the marginalized
and underrepresented, and that of the other petitioner groups and individuals who
profess to have standing as advocates and defenders of the Constitution,
respondents contend that such interest falls short of that required to confer
standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an
interest as a taxpayer for the implementation of E.O. 464 does not involve the
exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464, the
Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism Association v.
Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents
assert that to be considered a proper party, one must have a personal and
substantial interest in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially for
sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of
the members of Congress to access information that is crucial to law-
making.46 Verily, the Senate, including its individual members, has a substantial and
direct interest over the outcome of the controversy and is the proper party to
assail the constitutionality of E.O. 464. Indeed, legislators have standing to
maintain inviolate the prerogative, powers and privileges vested by the
147
Constitution in their office and are allowed to sue to question the validity of any
official action which they claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro
Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis),
Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any claim that an
investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient
that a claim is made that E.O. 464 infringes on their constitutional rights and duties
as members of Congress to conduct investigation in aid of legislation and conduct
oversight functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement
as it obtained three seats in the House of Representatives in the 2004 elections and
is, therefore, entitled to participate in the legislative process consonant with the
declared policy underlying the party list system of affording citizens belonging to
marginalized and underrepresented sectors, organizations and parties who lack
well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their
petitions, passing on the standing of their co-petitioners Courage and Codal is
rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public concern, asserting that the
right to information, curtailed and violated by E.O. 464, is essential to the effective
exercise of other constitutional rights51 and to the maintenance of the balance of
power among the three branches of the government through the principle of
checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and other
regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the assertion
of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in
view of the transcendental issues raised in its petition which this Court needs to
resolve in order to avert a constitutional crisis. For it to be accorded standing on
the ground of transcendental importance, however, it must establish (1) the
character of the funds (that it is public) or other assets involved in the case, (2) the
presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the
lack of any party with a more direct and specific interest in raising the questions
being raised.54 The first and last determinants not being present as no public funds
or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct
and specific interests in the resolution of the controversy, petitioner PDP-Laban is
bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized
interest" which it shares with the rest of the political parties. Concrete injury,
whether actual or threatened, is that indispensable element of a dispute which
serves in part to cast it in a form traditionally capable of judicial resolution.55 In
fine, PDP-Laban’s alleged interest as a political party does not suffice to clothe it
with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of E.O.
464, particularly those on the NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing
that President Arroyo has actually withheld her consent or prohibited the
appearance of the invited officials.56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance.57 Specifically with
regard to the AFP officers who did not attend the hearing on September 28, 2005,
respondents claim that the instruction not to attend without the President’s
consent was based on its role as Commander-in-Chief of the Armed Forces, not on
E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the appearance
of officials before Congress, and that such apprehension is not sufficient for
challenging the validity of E.O. 464.
148
The Court finds respondents’ assertion that the President has not withheld her
consent or prohibited the appearance of the officials concerned immaterial in
determining the existence of an actual case or controversy insofar as E.O. 464 is
concerned. For E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence
of officials invited to the hearings of petitioner Senate of the Philippines, it would
make no sense to wait for any further event before considering the present case
ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court
would now refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the information in the possession of these officials.
To resolve the question of whether such withholding of information violates the
Constitution, consideration of the general power of Congress to obtain
information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of
the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution
except that, in the latter, it vests the power of inquiry in the unicameral legislature
established therein – the Batasang Pambansa – and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v.
Nazareno,58 a case decided in 1950 under that Constitution, the Court already
recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of
the Buenavista and Tambobong Estates by the Rural Progress Administration.
Arnault, who was considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to answer the questions of
the senators on an important point, he was, by resolution of the Senate, detained
for contempt. Upholding the Senate’s power to punish Arnault for contempt, this
Court held:
Although there is no provision in the Constitution expressly investing either House
of Congress with power to make investigations and exact testimony to the end that
it may exercise its legislative functions advisedly and effectively, such power is so
far incidental to the legislative function as to be implied. In other words, the power
of inquiry – with process to enforce it – is an essential and appropriate auxiliary to
the legislative function. A legislative body cannot legislate wisely or effectively in
the absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself possess
the requisite information – which is not infrequently true – recourse must be had
to others who do possess it. Experience has shown that mere requests for such
information are often unavailing, and also that information which is volunteered is
not always accurate or complete; so some means of compulsion is essential to
obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch
may be deduced from the same case. The power of inquiry, the Court therein ruled,
is co-extensive with the power to legislate.60 The matters which may be a proper
subject of legislation and those which may be a proper subject of investigation are
one. It follows that the operation of government, being a legitimate subject for
legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction
involved in Arnault was a proper exercise of the power of inquiry. Besides being
related to the expenditure of public funds of which Congress is the guardian, the
transaction, the Court held, "also involved government agencies created by
Congress and officers whose positions it is within the power of Congress to regulate
or even abolish."
Since Congress has authority to inquire into the operations of the executive branch,
it would be incongruous to hold that the power of inquiry does not extend to
executive officials who are the most familiar with and informed on executive
operations.
149
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era,"
however, the right of Congress to conduct inquiries in aid of legislation is, in theory,
no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court’s certiorari powers under Section
1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself
might not properly be in aid of legislation, and thus beyond the constitutional
power of Congress. Such inquiry could not usurp judicial functions. Parenthetically,
one possible way for Congress to avoid such a result as occurred in Bengzon is to
indicate in its invitations to the public officials concerned, or to any person for that
matter, the possible needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there
would be less room for speculation on the part of the person invited on whether
the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit
filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances, none appearing to obtain at
present, wherein a clear pattern of abuse of the legislative power of inquiry might
be established, resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions
to the power of inquiry, which exemptions fall under the rubric of "executive
privilege." Since this term figures prominently in the challenged order, it being
mentioned in its provisions, its preambular clauses, 62 and in its very title, a
discussion of executive privilege is crucial for determining the constitutionality of
E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution.63 Being of American
origin, it is best understood in light of how it has been defined and used in the legal
literature of the United States.
Schwartz defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress."64 Similarly, Rozell
defines it as "the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds.67Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more accurate to
speak of executive privileges "since presidential refusals to furnish information may
be actuated by any of at least three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context of either judicial or
legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by
U.S. Presidents, beginning with Washington, on the ground that the information is
of such nature that its disclosure would subvert crucial military or diplomatic
objectives. Another variety is the informer’s privilege, or the privilege of the
Government not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law. Finally, a
generic privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and
policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
150
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they felt
was crucial to fulfillment of the unique role and responsibilities of the executive
branch of our government. Courts ruled early that the executive had a right to
withhold documents that might reveal military or state secrets. The courts have
also granted the executive a right to withhold the identity of government informers
in some circumstances and a qualified right to withhold information related to
pending investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive
regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the ordinary
citizen or organization where such exemption is necessary to the discharge of
highly important executive responsibilities involved in maintaining governmental
operations, and extends not only to military and diplomatic secrets but also to
documents integral to an appropriate exercise of the executive’ domestic
decisional and policy making functions, that is, those documents reflecting the
frank expression necessary in intra-governmental advisory and deliberative
communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For in
determining the validity of a claim of privilege, the question that must be asked is
not only whether the requested information falls within one of the traditional
privileges, but also whether that privilege should be honored in a given procedural
setting.71
The leading case on executive privilege in the United States is U.S. v.
Nixon, 72 decided in 1974. In issue in that case was the validity of President Nixon’s
claim of executive privilege against a subpoena issued by a district court requiring
the production of certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the President’s general interest
in the confidentiality of his conversations and correspondence. The U.S. Court held
that while there is no explicit reference to a privilege of confidentiality in the U.S.
Constitution, it is constitutionally based to the extent that it relates to the effective
discharge of a President’s powers. The Court, nonetheless, rejected the President’s
claim of privilege, ruling that the privilege must be balanced against the public
interest in the fair administration of criminal justice. Notably, the Court was careful

to clarify that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are
rare.73 Despite frequent assertion of the privilege to deny information to Congress,
beginning with President Washington’s refusal to turn over treaty negotiation
records to the House of Representatives, the U.S. Supreme Court has never
adjudicated the issue.74 However, the U.S. Court of Appeals for the District of
Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized
the President’s privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme
Court in Nixon, the Court of Appeals weighed the public interest protected by the
claim of privilege against the interest that would be served by disclosure to the
Committee. Ruling that the balance favored the President, the Court declined to
enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court
in Almonte v. Vasquez.77Almonte used the term in reference to the same privilege
subject of Nixon. It quoted the following portion of the Nixon decision which
explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in
a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential communications.
The privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the
therein petitioners. It did not involve, as expressly stated in the decision, the right
of the people to information.78 Nonetheless, the Court recognized that there are
certain types of information which the government may withhold from the public,
thus acknowledging, in substance if not in name, that executive privilege may be
claimed against citizens’ demands for information.
151
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common
law holding that there is a "governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other national security
matters."80 The same case held that closed-door Cabinet meetings are also a
recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to
information does not extend to matters recognized as "privileged information
under the separation of powers,"82 by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings.
It also held that information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law enforcement
agencies before the prosecution of the accused were exempted from the right to
information.
From the above discussion on the meaning and scope of executive privilege, both
in the United States and in this jurisdiction, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a sensitive character.
While executive privilege is a constitutional concept, a claim thereof may be valid
or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials.
Indeed, the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to
secure the consent of the President prior to appearing before Congress. There are
significant differences between the two provisions, however, which constrain this
Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3,
require a prior determination by any official whether they are covered by E.O. 464.
The President herself has, through the challenged order, made the determination
that they are. Further, unlike also Section 3, the coverage of department heads
under Section 1 is not made to depend on the department heads’ possession of any
information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege

at all. Rather, the required prior consent under Section 1 is grounded on Article VI,
Section 22 of the Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the
consent of the President, or upon the request of either House, as the rules of each
House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance. Interpellations shall not be limited
to written questions, but may cover matters related thereto. When the security of
the State or the public interest so requires and the President so states in writing,
the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning
of Section 22 of Article VI. Section 22 which provides for the question hour must be
interpreted vis-à-vis Section 21 which provides for the power of either House of
Congress to "conduct inquiries in aid of legislation." As the following excerpt of the
deliberations of the Constitutional Commission shows, the framers were aware
that these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam President, because in our
experience in the Regular Batasang Pambansa – as the Gentleman himself has
experienced in the interim Batasang Pambansa – one of the most competent inputs
that we can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We usually
invite them, but if they do not come and it is a congressional investigation, we
usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said
that the fact that the Cabinet ministers may refuse to come to the House of
Representatives or the Senate [when requested under Section 22] does not mean
that they need not come when they are invited or subpoenaed by the committee
of either House when it comes to inquiries in aid of legislation or congressional
investigation. According to Commissioner Suarez, that is allowed and their
presence can be had under Section 21. Does the gentleman confirm this, Madam
President?
152
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to
what was originally the Question Hour, whereas, Section 21 would refer specifically
to inquiries in aid of legislation, under which anybody for that matter, may be
summoned and if he refuses, he can be held in contempt of the House.83 (Emphasis
and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question
hour. While attendance was meant to be discretionary in the question hour, it was
compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez
bears noting, he being one of the proponents of the amendment to make the
appearance of department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that
the Committee on Style, precisely in recognition of this distinction, later moved the
provision on question hour from its original position as Section 20 in the original
draft down to Section 31, far from the provision on inquiries in aid of legislation.
This gave rise to the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style]
We now go, Mr. Presiding Officer, to the Article on Legislative and may I request
the chairperson of the Legislative Department, Commissioner Davide, to give his
reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that instead of putting it as Section 31, it should follow
Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this
but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a
power of Congress in terms of its own lawmaking; whereas, a Question Hour is not
actually a power in terms of its own lawmaking power because in Legislative
Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope
Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it
is precisely as a complement to or a supplement of the Legislative Inquiry. The
appearance of the members of Cabinet would be very, very essential not only in
the application of check and balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that and so
this Section 31 would now become Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide
and Maambong proceeded from the same assumption that these provisions
pertained to two different functions of the legislature. Both Commissioners
understood that the power to conduct inquiries in aid of legislation is different
from the power to conduct inquiries during the question hour. Commissioner
Davide’s only concern was that the two provisions on these distinct powers be
placed closely together, they being complementary to each other. Neither
Commissioner considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the above-
quoted exchange, Commissioner Maambong’s committee – the Committee on
Style – shared the view that the two provisions reflected distinct functions of
Congress. Commissioner Davide, on the other hand, was speaking in his capacity as
Chairman of the Committee on the Legislative Department. His views may thus be
presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a
definite meaning. It is a period of confrontation initiated by Parliament to hold the
Prime Minister and the other ministers accountable for their acts and the operation
of the government,85 corresponding to what is known in Britain as the question
period. There was a specific provision for a question hour in the 1973
Constitution86 which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that Constitution,
where the ministers are also members of the legislature and are directly
accountable to it.
An essential feature of the parliamentary system of government is the immediate
accountability of the Prime Minister and the Cabinet to the National Assembly.
They shall be responsible to the National Assembly for the program of government
153
and shall determine the guidelines of national policy. Unlike in the presidential
system where the tenure of office of all elected officials cannot be terminated
before their term expired, the Prime Minister and the Cabinet remain in office only
as long as they enjoy the confidence of the National Assembly. The moment this
confidence is lost the Prime Minister and the Cabinet may be changed. 87
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform
more fully to a system of separation of powers.88 To that extent, the question hour,
as it is presently understood in this jurisdiction, departs from the question period
of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered
powerless to elicit information from them in all circumstances. In fact, in light of
the absence of a mandatory question period, the need to enforce Congress’ right to
executive information in the performance of its legislative function becomes more
imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any
source – even from officials of departments and agencies in the executive branch.
In the United States there is, unlike the situation which prevails in a parliamentary
system such as that in Britain, a clear separation between the legislative and
executive branches. It is this very separation that makes the congressional right to
obtain information from the executive so essential, if the functions of the Congress
as the elected representatives of the people are adequately to be carried out. The
absence of close rapport between the legislative and executive branches in this
country, comparable to those which exist under a parliamentary system, and the
nonexistence in the Congress of an institution such as the British question period
have perforce made reliance by the Congress upon its right to obtain information
from the executive essential, if it is intelligently to perform its legislative tasks.
Unless the Congress possesses the right to obtain executive information, its power
of oversight of administration in a system such as ours becomes a power devoid of
most of its practical content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89 (Emphasis and underscoring
supplied)
Sections 21 and 22, therefore, while closely related and complementary to each
other, should not be considered as pertaining to the same power of Congress. One
specifically relates to the power to conduct inquiries in aid of legislation, the aim of
which is to elicit information that may be used for legislation, while the other

pertains to the power to conduct a question hour, the objective of which is to
obtain information in pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is not as
imperative as that of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of duty. In such
instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is "in aid of legislation" under Section 21,
the appearance is mandatory for the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process
only to the extent that it is performed in pursuit of legislation. This is consistent
with the intent discerned from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials
under Section 21 and the lack of it under Section 22 find their basis in the principle
of separation of powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department heads
to exempt themselves therefrom is by a valid claim of privilege. They are not
exempt by the mere fact that they are department heads. Only one executive
official may be exempted from this power — the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of
impeachment. It is based on her being the highest official of the executive branch,
and the due respect accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this
power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body;
hence, each member thereof is exempt on the basis not only of separation of
powers but also on the fiscal autonomy and the constitutional independence of the
judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker
Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.
154
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of Section 1
of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department heads
in the question hour contemplated in the provision of said Section 22 of Article VI.
The reading is dictated by the basic rule of construction that issuances must be
interpreted, as much as possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it
is only to appearances in the question hour, is valid on its face. For under Section
22, Article VI of the Constitution, the appearance of department heads in the
question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in
inquiries in aid of legislation. Congress is not bound in such instances to respect the
refusal of the department head to appear in such inquiry, unless a valid claim of
privilege is subsequently made, either by the President herself or by the Executive
Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to
secure the consent of the President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated in the same
section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the
National Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 — "Nature, Scope and Coverage of Executive
Privilege" —, it is evident that under the rule of ejusdem generis, the determination
by the President under this provision is intended to be based on a similar finding of
coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.

Executive privilege, as discussed above, is properly invoked in relation to specific
categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege, the reference to persons being "covered by the
executive privilege" may be read as an abbreviated way of saying that the person is
in possession of information which is, in the judgment of the head of office
concerned, privileged as defined in Section 2(a). The Court shall thus proceed on
the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an
official is "covered by the executive privilege," such official is subjected to the
requirement that he first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The proviso allowing the
President to give its consent means nothing more than that the President may
reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head
of office, authorized by the President under E.O. 464, or by the President herself,
that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the official’s not showing
up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be
present, such invocation must be construed as a declaration to Congress that the
President, or a head of office authorized by the President, has determined that the
requested information is privileged, and that the President has not reversed such
determination. Such declaration, however, even without mentioning the term
"executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to
Senate President Drilon illustrates the implied nature of the claim of privilege
authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole
regarding the Northrail Project of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m., please be informed that officials of the Executive
155
Department invited to appear at the meeting will not be able to attend the same
without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The
Constitution, And For Other Purposes". Said officials have not secured the required
consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which
these officials are being requested to be resource persons falls under the
recognized grounds of the privilege to justify their absence. Nor does it expressly
state that in view of the lack of consent from the President under E.O. 464, they
cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not.
The letter assumes that the invited officials are covered by E.O. 464. As explained
earlier, however, to be covered by the order means that a determination has been
made, by the designated head of office or the President, that the invited official
possesses information that is covered by executive privilege. Thus, although it is
not stated in the letter that such determination has been made, the same must be
deemed implied. Respecting the statement that the invited officials have not
secured the consent of the President, it only means that the President has not
reversed the standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the
executive branch, either through the President or the heads of offices authorized
under E.O. 464, has made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has been no contrary
pronouncement from the President. In fine, an implied claim of privilege has been
made by the executive.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez v.
PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged
information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal-deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are recognized

as confidential. This kind of information cannot be pried open by a co-equal branch
of government. A frank exchange of exploratory ideas and assessments, free from
the glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the instant
case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the
mere fact that it sanctions claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that renders it
invalid per se. By its very nature, and as demonstrated by the letter of respondent
Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic secrets, closed-
door Cabinet meetings, etc.). While Section 2(a) enumerates the types of
information that are covered by the privilege under the challenged order, Congress
is left to speculate as to which among them is being referred to by the executive.
The enumeration is not even intended to be comprehensive, but a mere statement
of what is included in the phrase "confidential or classified information between
the President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has determined that it is so, and that the
President has not overturned that determination. Such declaration leaves Congress
in the dark on how the requested information could be classified as privileged. That
the message is couched in terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to make Congress doubly
blind to the question of why the executive branch is not providing it with the
information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither
be claimed nor waived by a private party. It is not to be lightly invoked. There must
156
be a formal claim of privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by that officer. The
court itself must determine whether the circumstances are appropriate for the
claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there
is no way of determining whether it falls under one of the traditional privileges, or
whether, given the circumstances in which it is made, it should be
respected.93 These, in substance, were the same criteria in assessing the claim of
privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in
point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from
disclosure impossible, thereby preventing the Court from balancing such harm
against plaintiffs’ needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its objection to claimant’s interrogatories,
government asserts, and nothing more, that the disclosures sought by claimant
would inhibit the free expression of opinion that non-disclosure is designed to
protect. The government has not shown – nor even alleged – that those who
evaluated claimant’s product were involved in internal policymaking, generally, or
in this particular instance. Privilege cannot be set up by an unsupported claim. The
facts upon which the privilege is based must be established. To find these
interrogatories objectionable, this Court would have to assume that the evaluation
and classification of claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency
must provide ‘precise and certain’ reasons for preserving the confidentiality of
requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and
description of the documents within its scope as well as precise and certain reasons
for preserving their confidentiality. Without this specificity, it is impossible for a
court to analyze the claim short of disclosure of the very thing sought to be
protected. As the affidavit now stands, the Court has little more than its sua sponte
speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a
claim was made by the proper executive as Reynolds requires, the Court can not
recognize the claim in the instant case because it is legally insufficient to allow the
Court to make a just and reasonable determination as to its applicability. To
recognize such a broad claim in which the Defendant has given no precise or
compelling reasons to shield these documents from outside scrutiny, would make a
farce of the whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than
a claim of privilege clearly stating the grounds therefor. Apropos is the following
ruling in McPhaul v. U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724,
is highly relevant to these questions. For it is as true here as it was there, that ‘if
(petitioner) had legitimate reasons for failing to produce the records of the
association, a decent respect for the House of Representatives, by whose authority
the subpoenas issued, would have required that (he) state (his) reasons for
noncompliance upon the return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. ‘To deny the Committee the opportunity
to consider the objection or remedy is in itself a contempt of its authority and an
obstruction of its processes. His failure to make any such statement was "a patent
evasion of the duty of one summoned to produce papers before a congressional
committee[, and] cannot be condoned." (Emphasis and underscoring supplied;
citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons
for the claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect.103 A useful analogy in determining the
requisite degree of particularity would be the privilege against self-incrimination.
Thus, Hoffman v. U.S.104 declares:
157
The witness is not exonerated from answering merely because he declares that in
so doing he would incriminate himself – his say-so does not of itself establish the
hazard of incrimination. It is for the court to say whether his silence is justified, and
to require him to answer if ‘it clearly appears to the court that he is mistaken.’
However, if the witness, upon interposing his claim, were required to prove the
hazard in the sense in which a claim is usually required to be established in court,
he would be compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus
invalid per se. It is not asserted. It is merely implied. Instead of providing precise
and certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is woefully
insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of
inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on what
is covered by executive privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere expression of opinion
by the President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged
order the alleged unlawful delegation of authority to the heads of offices in Section
2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United
States where, so it claims, only the President can assert executive privilege to
withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is
presumed to bear the President’s authority and has the effect of prohibiting the
official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official.
 158

These provisions thus allow the President to authorize claims of privilege by mere of the Constitution mandating that "[t]he rights of persons appearing in or affected
silence. by such inquiries shall be respected."

Such presumptive authorization, however, is contrary to the exceptional nature of In light of the above discussion of Section 3, it is clear that it is essentially an
the privilege. Executive privilege, as already discussed, is recognized with respect to authorization for implied claims of executive privilege, for which reason it must be
information the confidential nature of which is crucial to the fulfillment of the invalidated. That such authorization is partly motivated by the need to ensure
unique role and responsibilities of the executive branch,105 or in those instances respect for such officials does not change the infirm nature of the authorization
where exemption from disclosure is necessary to the discharge of highly important itself.
executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept Right to Information
confidential in pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in this case to Congress, the
E.O 464 is concerned only with the demands of Congress for the appearance of
necessity must be of such high degree as to outweigh the public interest in
executive officials in the hearings conducted by it, and not with the demands of
enforcing that obligation in a particular case.
citizens for information pursuant to their right to information on matters of public
concern. Petitioners are not amiss in claiming, however, that what is involved in the
In light of this highly exceptional nature of the privilege, the Court finds it essential present controversy is not merely the legislative power of inquiry, but the right of
to limit to the President the power to invoke the privilege. She may of course the people to information.
authorize the Executive Secretary to invoke the privilege on her behalf, in which
case the Executive Secretary must state that the authority is "By order of the
There are, it bears noting, clear distinctions between the right of Congress to
President," which means that he personally consulted with her. The privilege being
information which underlies the power of inquiry and the right of the people to
an extraordinary power, it must be wielded only by the highest official in the
information on matters of public concern. For one, the demand of a citizen for the
executive hierarchy. In other words, the President may not authorize her
production of documents pursuant to his right to information does not have the
subordinates to exercise such power. There is even less reason to uphold such
same obligatory force as a subpoena duces tecum issued by Congress. Neither does
authorization in the instant case where the authorization is not explicit but by mere
the right to information grant a citizen the power to exact testimony from
silence. Section 3, in relation to Section 2(b), is further invalid on this score.
government officials. These powers belong only to Congress and not to an
individual citizen.
It follows, therefore, that when an official is being summoned by Congress on a
matter which, in his own judgment, might be covered by executive privilege, he
Thus, while Congress is composed of representatives elected by the people, it does
must be afforded reasonable time to inform the President or the Executive
not follow, except in a highly qualified sense, that in every exercise of its power of
Secretary of the possible need for invoking the privilege. This is necessary in order
inquiry, the people are exercising their right to information.
to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If, after
the lapse of that reasonable time, neither the President nor the Executive Secretary To the extent that investigations in aid of legislation are generally conducted in
invokes the privilege, Congress is no longer bound to respect the failure of the public, however, any executive issuance tending to unduly limit disclosures of
official to appear before Congress and may then opt to avail of the necessary legal information in such investigations necessarily deprives the people of information
means to compel his appearance. which, being presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information which they
can use in formulating their own opinions on the matter before Congress —
The Court notes that one of the expressed purposes for requiring officials to secure
opinions which they can then communicate to their representatives and other
the consent of the President under Section 3 of E.O. 464 is to ensure "respect for
government officials through the various legal means allowed by their freedom of
the rights of public officials appearing in inquiries in aid of legislation." That such
expression. Thus holds Valmonte v. Belmonte:
rights must indeed be respected by Congress is an echo from Article VI Section 21

It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the
people’s will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only when the
participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.107(Emphasis and underscoring
supplied)
The impairment of the right of the people to information as a consequence of E.O.
464 is, therefore, in the sense explained above, just as direct as its violation of the
legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow
that the same is exempt from the need for publication. On the need for publishing
even those statutes that do not directly apply to people in general, Tañada v.
Tuvera states:
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit there
are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was
decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of
the body politic may question in the political forums or, if he is a proper party, even
in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates
that the challenged order must be covered by the publication requirement. As
explained above, E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a matter of public
interest which members of the body politic may question before this Court. Due
process thus requires that the people should have been apprised of this issuance
before it was implemented.
Conclusion
159
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to
do so and/or proffering its reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of legislation is
frustrated. That is impermissible. For
[w]hat republican theory did accomplish…was to reverse the old presumption in
favor of secrecy, based on the divine right of kings and nobles, and replace it with a
presumption in favor of publicity, based on the doctrine of popular sovereignty.
(Underscoring supplied)109
Resort to any means then by which officials of the executive branch could refuse to
divulge information cannot be presumed valid. Otherwise, we shall not have
merely nullified the power of our legislature to inquire into the operations of
government, but we shall have given up something of much greater value – our
right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive
Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation
of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are
declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
June 24, 2009
Senate vs. Ermita , GR 169777, April 20, 2006
FACTS:
This is a petition for certiorari and prohibition proffer that the President has abused
power by issuing E.O. 464 “Ensuring Observance of the Principles of Separation of

Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and for Other Purposes”. Petitioners pray for its declaration as null
and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and employees of the executive
department, bureaus, and offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).
The Committee of the Senate issued invitations to various officials of the Executive
Department for them to appear as resource speakers in a public hearing on the
railway project, others on the issues of massive election fraud in the Philippine
elections, wire tapping, and the role of military in the so-called “Gloriagate
Scandal”.
Said officials were not able to attend due to lack of consent from the President as
provided by E.O. 464, Section 3 which requires all the public officials enumerated in
Section 2(b) to secure the consent of the President prior to appearing before either
house of Congress.
ISSUE:
Is Section 3 of E.O. 464, which requires all the public officials, enumerated in
Section 2(b) to secure the consent of the President prior to appearing before either
house of Congress, valid and constitutional?
RULING:
No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the
executive privilege. The doctrine of executive privilege is premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit
of the public interest. The privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress, the necessity must be
of such high degree as to outweigh the public interest in enforcing that obligation
in a particular case.
160
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to
do so and/or proffering its reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of legislation is
frustrated.
Senate vs. Ermita
Senate of the Phils. v Executive Secretary
G.R. No. 169777 April 20, 2006
Facts:
1. Assailed in this petition was the constitutionality of Executive Order 464
issued by the President. Petitioners contend that the President abused its power
and prayed that said law be declared null and void. EO 464 requires that heads of
departments obtain the consent of the President before they can validly appear
before investigations including the one conducted in the Senate. It also grants
executive privilege on all classified or confidential information between the
President and the public officers covered by the EO.
2. The Senate conducted an investigation and issued invitations to various
officials of the Executive department as resource speakers in a public hearing on
the North Rail project. Said public hearing was sparked by a privilege speech of Sen.
Enrile urging the Senate to investigate the alleged overpricing and other unlawful
provisions of the contract covering the said project. The Senate Committee on
National Defense and Security likewise issued invitations to officials of the AFP.
3. Executive Ermita sent a letter to the Senate requesting postponement of the
hearing. On the same day (Sept 28, 2005) the President issued EO 464. Despite this
development, the investigation pushed through, with only Col. Balutan and Brig.

Gen. Gudani among all the AFP officials invited attending. Both were subsequently
relieved for defying the President’s order.
4. Hence, three petitions (Bayan Muna, Sen. Chavez, Alt.. Law Group), for
certiorari and prohibition and TRO, were filed before the Supreme Court
challenging the constitutionality of E.O. 464.
ISSUE: Whether or not E.O. 464 contravenes the power of inquiry vested in
Congress
YES. EO 464 bars the appearance of executive officials before the Congress, hence
it deprives it of the information in possession of these officials.
1. The Congress power of inquiry is expressly recognized in Sec. 21 Article VI of
the Constitution. This power is incidental to the legislative function. The power of
inquiry – with process to enforce it -- is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the
absence of information respecting conditions which the legislation is intended to
affect or change; and when it does not possess the required information, recourse
must be had on others who possess it. This power is broad enough to cover officials
of the executive branch. The operation of the government is a proper subject for
investigation, as held in Arnault case.
2. Although the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which fall under the rubric of ‘executive
privilege’. It is defined by Schwartz as “the power of the government to withhold
information from the public, the courts and the Congress.” (e.g. state secret
privilege, informer’s privilege, generic privilege)
3. The power of Congress to compel the appearance of executive officials under
Section 21 and the lack of it under Section 22 find their basis in the principle of
separation of powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information. The oversight function of Congress may
be facilitated by compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.
161
4. Congress undoubtedly, has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to
do so and/or proffering its reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of legislation is
frustrated. That is impermissible.
5. Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a sensitive
character. While executive privilege is a constitutional concept, a claim thereof may
be valid or not depending on the ground invoked to justify it and the context in
which it is made. Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact of being executive
officials. Indeed, the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of disclosure.
Sec. 21 (Inquiry in Aid of Legislation) vs Sec. 22 (Question Hour)
6. A distinction was made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation. These are two distinct
functions of the legislature. Sec. 21 and 22 while closely related does not pertain to
the same power of the Congress. One specifically relates to the power to conduct
inquiries in aid of legislation with the aim of eliciting information that may be used
in legislation while the other pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress’ oversight
function. Hence, the oversight function of Congress may only be facilitated by
compulsory process only to the extent that it is performed in pursuit of legislation.
7. When Congress exercises its power of inquiry, the only way for the
department heads to exempt themselves therefrom is by a valid claim of privilege,
and not by the mere fact that they are department heads. Only one executive
official may be exempted from this power – the president on whom the executive
power is vested, hence beyond the reach of the Congress except by the power of
 162

impeachment. Members of SC are likewise exempt from this power of inquiry. This reasons therefor. By the mere expedient of invoking said provisions, the power of
is on the basis of separation of powers and fiscal autonomy, as well as the Congress to conduct inquiries in aid of legislation is frustrated. That is
constitutional independence of the judiciary. impermissible. Resort to any means then by which officials of the executive branch
could refuse to divulge information cannot be presumed valid. Otherwise, we shall
On the constitutionality of EO 464 not have merely nullified the power of our legislature to inquire into the operations
of government, but we shall have given up something of much greater value – our
8. Section 1, in view of its specific reference to Section 22 of Article VI of the
right as a people to take part in government.
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department heads
in the question hour contemplated in the provision of said Section 22 of Article VI.
The reading is dictated by the basic rule of construction that issuances must be
interpreted, as much as possible, in a way that will render it constitutional. Section
1 cannot, however, be applied to appearances of department heads in inquiries in
aid of legislation. Congress is not bound in such instances to respect the refusal of
the department head to appear in such inquiry, unless a valid claim of privilege is
subsequently made, either by the President herself or by the Executive Secretary.

9. Section 3 and Section 2(b) of E.O. 464 must be invalidated. Section 3 of E.O.
464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the
claim of privilege authorized by the Order to determine whether it is valid. The
claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus
invalid per se. It is not asserted. It is merely implied. Instead of providing precise
and certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is woefully
insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of
inquiry of Congress.

10. The impairment of the right of the people to information as a consequence of

E.O. 464 is, just as direct as its violation of the legislature’s power of inquiry.

11. Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected. The infirm provisions of E.O. 464,
however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its

EN BANC
KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P. DAPULANG,
SALVADOR T. CARRANZA, MARTIN T. CUSTODIO, JR. and ROQUE M. TAN,
Petitioners,
- versus –
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT AUTHORITY, and
THE SECRETARY, DEPARTMENT OF BUDGET and MANAGEMENT, Respondents.
DECISION
This case involves two consolidated petitions for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND
CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR
IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE
DIRECTOR-GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO
IMPLEMENT THE SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have created
unnecessary and costly redundancies and higher costs to government, while
making it inconvenient for individuals to be holding several identification cards;
WHEREAS, there is urgent need to streamline and integrate the processes and
issuance of identification cards in government to reduce costs and to provide
greater convenience for those transacting business with government;
WHEREAS, a unified identification system will facilitate private businesses, enhance
the integrity and reliability of government-issued identification cards in private
transactions, and prevent violations of laws involving false names and identities.
163
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of
the Philippines by virtue of the powers vested in me by law, do hereby direct the
following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for
government. All government agencies, including government-owned and
controlled corporations, are hereby directed to adopt a unified multi-purpose ID
system to ensure the attainment of the following objectives:
a. To reduce costs and thereby lessen the financial burden on both the government
and the public brought about by the use of multiple ID cards and the maintenance
of redundant database containing the same or related information;
b. To ensure greater convenience for those transacting business with the
government and those availing of government services;
c. To facilitate private businesses and promote the wider use of the unified ID card
as provided under this executive order;
d. To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government service.
Section 2. Coverage All government agencies and government-owned and
controlled corporations issuing ID cards to their members or constituents shall be
covered by this executive order.
Section 3. Data requirement for the unified ID system The data to be collected and
recorded by the participating agencies shall be limited to the following:
Provided that a corresponding ID number issued by the participating agency and a
common reference number shall form part of the stored ID data and, together with
at least the first five items listed above, including the print of the right thumbmark,
or any of the fingerprints as collected and stored, shall appear on the face or back
of the ID card for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic and Development
Authority, to Harmonize All Government Identification Systems. The Director-

General, National Economic Development Authority, is hereby authorized to
streamline and harmonize all government ID systems.
Section 5. Functions and responsibilities of the Director-General, National
Economic and Development Authority. In addition to his organic functions and
responsibilities, the Director-General, National Economic and Development
Authority, shall have the following functions and responsibilities:
a. Adopt within sixty (60) days from the effectivity of this executive order a unified
government ID system containing only such data and features, as indicated in
Section 3 above, to validly establish the identity of the card holder:
b. Enter into agreements with local governments, through their respective leagues
of governors or mayors, the Commission on Elections (COMELEC), and with other
branches or instrumentalities of the government, for the purpose of ensuring
government-wide adoption of and support to this effort to streamline the ID
systems in government;
b. Call on any other government agency or institution, or create subcommittees or
technical working groups, to provide such assistance as may be necessary or
required for the effective performance of its functions; and
d. Promulgate such rules or regulations as may be necessary in pursuance of the
objectives of this executive order.
Section 6. Safeguards. The Director-General, National Economic and Development
Authority, and the pertinent agencies shall adopt such safeguard as may be
necessary and adequate to ensure that the right to privacy of an individual takes
precedence over efficient public service delivery. Such safeguards shall, as a
minimum, include the following:
a. The data to be recorded and stored, which shall be used only for purposes of
establishing the identity of a person, shall be limited to those specified in Section 3
of this executive order;
b. In no case shall the collection or compilation of other data in violation of a
persons right to privacy shall be allowed or tolerated under this order;
164
c. Stringent systems of access control to data in the identification system shall be
instituted;
d. Data collected and stored for this purpose shall be kept and treated as strictly
confidential and a personal or written authorization of the Owner shall be required
for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced security
features and cryptographic technology; and
f. A written request by the Owner of the identification card shall be required for
any correction or revision of relevant data, or under such conditions as the
participating agency issuing the identification card shall prescribe.
Section 7. Funding. Such funds as may be recommended by the Department of
Budget and Management shall be provided to carry out the objectives of this
executive order.
Section 8. Repealing clause. All executive orders or issuances, or portions thereof,
which are inconsistent with this executive order, are hereby revoked, amended or
modified accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15) days after its
publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two
Thousand and Five.
Thus, under EO 420, the President directs all government agencies and
government-owned and controlled corporations to adopt a uniform data collection
and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it
constitutes usurpation of legislative functions by the executive branch of the
government. Furthermore, they allege that EO 420 infringes on the citizens right to
privacy.[1]

Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following
grounds:
1. EO 420 is contrary to law. It completely disregards and violates the decision of
this Honorable Court in Ople v. Torres et al., G.R. No. 127685, July 23, 1998. It also
violates RA 8282 otherwise known as the Social Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as she has no power
to issue EO 420. Furthermore, the implementation of the EO will use public funds
not appropriated by Congress for that purpose.
3. EO 420 violates the constitutional provisions on the right to privacy
(i) It allows access to personal confidential data without the owners
consent.
(ii) EO 420 is vague and without adequate safeguards or penalties for any
violation of its provisions.
(iii) There are no compelling reasons that will legitimize the necessity of
EO 420.
4. Granting without conceding that the President may issue EO 420, the Executive
Order was issued without public hearing.
5. EO 420 violates the Constitutional provision on equal protection of laws and
results in the discriminatory treatment of and penalizes those without ID.[2]
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a
usurpation of legislative power by the President. Second, petitioners claim that EO
420 infringes on the citizens right to privacy.
Respondents question the legal standing of petitioners and the ripeness of the
petitions. Even assuming that petitioners are bereft of legal standing, the Court
considers the issues raised under the circumstances of paramount public concern
or of transcendental significance to the people. The petitions also present a
justiciable controversy ripe for judicial determination because all government
165
entities currently issuing identification cards are mandated to implement EO 420,
which petitioners claim is patently unconstitutional. Hence, the Court takes
cognizance of the petitions.
The Courts Ruling
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, Coverage. All government agencies and government-
owned and controlled corporations issuing ID cards to their members or
constituents shall be covered by this executive order. EO 420 applies only to
government entities that issue ID cards as part of their functions under existing
laws. These government entities have already been issuing ID cards even prior to
EO 420. Examples of these government entities are the GSIS,[3] SSS,[4]
Philhealth,[5] Mayors Office,[6] LTO,[7] PRC,[8] and similar government entities.
Section 1 of EO 420 directs these government entities to adopt a unified multi-
purpose ID system. Thus, all government entities that issue IDs as part of their
functions under existing laws are required to adopt a uniform data collection and
format for their IDs. Section 1 of EO 420 enumerates the purposes of the uniform
data collection and format, namely:
a. To reduce costs and thereby lessen the financial burden on both the government
and the public brought about by the use of multiple ID cards and the maintenance
of redundant database containing the same or related information;
b. To ensure greater convenience for those transacting business with the
government and those availing of government services;
c. To facilitate private businesses and promote the wider use of the unified ID card
as provided under this executive order;
d. To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government service.

In short, the purposes of the uniform ID data collection and ID format are to reduce
costs, achieve efficiency and reliability, insure compatibility, and provide
convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the uniform
ID system to only 14 specific items, namely: (1) Name; (2) Home Address; (3) Sex;
(4) Picture; (5) Signature; (6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9)
Name of Parents; (10) Height; (11) Weight; (12) Two index fingers and two
thumbmarks; (13) Any prominent distinguishing features like moles or others; and
(14) Tax Identification Number.
These limited and specific data are the usual data required for personal
identification by government entities, and even by the private sector. Any one who
applies for or renews a drivers license provides to the LTO all these 14 specific data.
At present, government entities like LTO require considerably more data from
applicants for identification purposes. EO 420 will reduce the data required to be
collected and recorded in the ID databases of the government entities.
Government entities cannot collect or record data, for identification purposes,
other than the 14 specific data.
Various laws allow several government entities to collect and record data for their
ID systems, either expressly or impliedly by the nature of the functions of these
government entities. Under their existing ID systems, some government entities
collect and record more data than what EO 420 allows. At present, the data
collected and recorded by government entities are disparate, and the IDs they issue
are dissimilar.
In the case of the Supreme Court,[9] the IDs that the Court issues to all its
employees, including the Justices, contain 15 specific data, namely: (1) Name; (2)
Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6) Height; (7) Weight;
(8) Complexion; (9) Color of Hair; (10) Blood Type; (11) Right Thumbmark; (12) Tax
Identification Number; (13) GSIS Policy Number; (14) Name and Address of Person
to be Notified in Case of Emergency; and (15) Signature. If we consider that the
picture in the ID can generally also show the sex of the employee, the Courts ID
actually contains 16 data.
166
In contrast, the uniform ID format under Section 3 of EO 420 requires only the first
five items listed in Section 3, plus the fingerprint, agency number and the common
reference number, or only eight specific data. Thus, at present, the Supreme Courts
ID contains far more data than the proposed uniform ID for government entities
under EO 420. The nature of the data contained in the Supreme Court ID is also far
more financially sensitive, specifically the Tax Identification Number.
Making the data collection and recording of government entities unified, and
making their ID formats uniform, will admittedly achieve substantial benefits.
These benefits are savings in terms of procurement of equipment and supplies,
compatibility in systems as to hardware and software, ease of verification and thus
increased reliability of data, and the user-friendliness of a single ID format for all
government entities.
There is no dispute that government entities can individually limit the collection
and recording of their data to the 14 specific items in Section 3 of EO 420. There is
also no dispute that these government entities can individually adopt the ID format
as specified in Section 3 of EO 420. Such an act is certainly within the authority of
the heads or governing boards of the government entities that are already
authorized under existing laws to issue IDs.
A unified ID system for all these government entities can be achieved in either of
two ways. First, the heads of these existing government entities can enter into a
memorandum of agreement making their systems uniform. If the government
entities can individually adopt a format for their own ID pursuant to their regular
functions under existing laws, they can also adopt by mutual agreement a uniform
ID format, especially if the uniform format will result in substantial savings, greater
efficiency, and optimum compatibility. This is purely an administrative matter, and
does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the
government entities under the Executive department to adopt a uniform ID data
collection and format. Section 17, Article VII of the 1987 Constitution provides that
the President shall have control of all executive departments, bureaus and offices.
The same Section also mandates the President to ensure that the laws be faithfully
executed.

Certainly, under this constitutional power of control the President can direct all
government entities, in the exercise of their functions under existing laws, to adopt
a uniform ID data collection and ID format to achieve savings, efficiency, reliability,
compatibility, and convenience to the public. The Presidents constitutional power
of control is self-executing and does not need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch of
government and does not extend to the Judiciary or to the independent
constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or to the
COMELEC which under existing laws is also authorized to issue voters ID cards.[10]
This only shows that EO 420 does not establish a national ID system because
legislation is needed to establish a single ID system that is compulsory for all
branches of government.
The Constitution also mandates the President to ensure that the laws are faithfully
executed. There are several laws mandating government entities to reduce costs,
increase efficiency, and in general, improve public services.[11] The adoption of a
uniform ID data collection and format under EO 420 is designed to reduce costs,
increase efficiency, and in general, improve public services. Thus, in issuing EO 420,
the President is simply performing the constitutional duty to ensure that the laws
are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to
promulgate. The President has not usurped legislative power in issuing EO 420. EO
420 is an exercise of Executive power the Presidents constitutional power of
control over the Executive department. EO 420 is also compliance by the President
of the constitutional duty to ensure that the laws are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal them. In
issuing EO 420, the President did not make, alter or repeal any law but merely
implemented and executed existing laws. EO 420 reduces costs, as well as insures
efficiency, reliability, compatibility and user-friendliness in the implementation of
current ID systems of government entities under existing laws. Thus, EO 420 is
simply an executive issuance and not an act of legislation.
The act of issuing ID cards and collecting the necessary personal data for imprinting
on the ID card does not require legislation. Private employers routinely issue ID
cards to their employees. Private and public schools also routinely issue ID cards to
167
their students. Even private clubs and associations issue ID cards to their members.
The purpose of all these ID cards is simply to insure the proper identification of a
person as an employee, student, or member of a club. These ID cards, although
imposed as a condition for exercising a privilege, are voluntary because a person is
not compelled to be an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID card
system. First, when the implementation of an ID card system requires a special
appropriation because there is no existing appropriation for such purpose. Second,
when the ID card system is compulsory on all branches of government, including
the independent constitutional commissions, as well as compulsory on all citizens
whether they have a use for the ID card or not. Third, when the ID card system
requires the collection and recording of personal data beyond what is routinely or
usually required for such purpose, such that the citizens right to privacy is
infringed.
In the present case, EO 420 does not require any special appropriation because the
existing ID card systems of government entities covered by EO 420 have the proper
appropriation or funding. EO 420 is not compulsory on all branches of government
and is not compulsory on all citizens. EO 420 requires a very narrow and focused
collection and recording of personal data while safeguarding the confidentiality of
such data. In fact, the data collected and recorded under EO 420 are far less than
the data collected and recorded under the ID systems existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not compel all
citizens to have an ID card. EO 420 applies only to government entities that under
existing laws are already collecting data and issuing ID cards as part of their
governmental functions. Every government entity that presently issues an ID card
will still issue its own ID card under its own name. The only difference is that the ID
card will contain only the five data specified in Section 3 of EO 420, plus the
fingerprint, the agency ID number, and the common reference number which is
needed for cross-verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the Executive
department should undertake cost savings, achieve efficiency in operations, insure
compatibility of equipment and systems, and provide user-friendly service to the
public. The collection of ID data and issuance of ID cards are day-to-day functions
of many government entities under existing laws. Even the Supreme Court has its

own ID system for employees of the Court and all first and second level courts. The
Court is even trying to unify its ID system with those of the appellate courts,
namely the Court of Appeals, Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts within
the Judiciary. The same is true for government entities under the Executive
department. If government entities under the Executive department decide to
unify their existing ID data collection and ID card issuance systems to achieve
savings, efficiency, compatibility and convenience, such act does not involve the
exercise of any legislative power. Thus, the issuance of EO 420 does not constitute
usurpation of legislative power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government entities have
been issuing ID cards in the performance of their governmental functions. There
have been no complaints from citizens that the ID cards of these government
entities violate their right to privacy. There have also been no complaints of abuse
by these government entities in the collection and recording of personal
identification data.
In fact, petitioners in the present cases do not claim that the ID systems of
government entities prior to EO 420 violate their right to privacy. Since petitioners
do not make such claim, they even have less basis to complain against the unified
ID system under EO 420. The data collected and stored for the unified ID system
under EO 420 will be limited to only 14 specific data, and the ID card itself will show
only eight specific data. The data collection, recording and ID card system under EO
420 will even require less data collected, stored and revealed than under the
disparate systems prior to EO 420.
Prior to EO 420, government entities had a free hand in determining the kind,
nature and extent of data to be collected and stored for their ID systems. Under EO
420, government entities can collect and record only the 14 specific data
mentioned in Section 3 of EO 420. In addition, government entities can show in
their ID cards only eight of these specific data, seven less data than what the
Supreme Courts ID shows.
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Also, prior to EO 420, there was no executive issuance to government entities
prescribing safeguards on the collection, recording, and disclosure of personal
identification data to protect the right to privacy. Now, under Section 5 of EO 420,
the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only for purposes of
establishing the identity of a person, shall be limited to those specified in Section 3
of this executive order;
b. In no case shall the collection or compilation of other data in violation of a
persons right to privacy be allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system shall be
instituted;
d. Data collected and stored for this purpose shall be kept and treated as strictly
confidential and a personal or written authorization of the Owner shall be required
for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced security
features and cryptographic technology;
f. A written request by the Owner of the identification card shall be required for
any correction or revision of relevant data, or under such conditions as the
participating agency issuing the identification card shall prescribe.
On its face, EO 420 shows no constitutional infirmity because it even narrowly
limits the data that can be collected, recorded and shown compared to the existing
ID systems of government entities. EO 420 further provides strict safeguards to
protect the confidentiality of the data collected, in contrast to the prior ID systems
which are bereft of strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by
government entities. Some one hundred countries have compulsory national ID
systems, including democracies such as Spain, France, Germany, Belgium, Greece,
Luxembourg, and Portugal. Other countries which do not have national ID systems,
like the United States, Canada, Australia, New Zealand, Ireland, the Nordic
Countries and Sweden, have sectoral cards for health, social or other public

services.[12] Even with EO 420, the Philippines will still fall under the countries that
do not have compulsory national ID systems but allow only sectoral cards for social
security, health services, and other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and
LTO cannot perform effectively and efficiently their mandated functions under
existing laws. Without a reliable ID system, GSIS, SSS, Philhealth and similar
government entities stand to suffer substantial losses arising from false names and
identities. The integrity of the LTOs licensing system will suffer in the absence of a
reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy,
namely, Griswold v. Connecticut,[13] U.S. Justice Department v. Reporters
Committee for Freedom of the Press,[14] and Whalen v. Roe.[15] The last two
decisions actually support the validity of EO 420, while the first is inapplicable to
the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law that
prohibited the use and distribution of contraceptives because enforcement of the
law would allow the police entry into the bedrooms of married couples. Declared
the U.S. Supreme Court: Would we allow the police to search the sacred precincts
of the marital bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to the notions of privacy surrounding the marriage relationship.
Because the facts and the issue involved in Griswold are materially different from
the present case, Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect and
store information on individuals from public records nationwide but whether the
State could withhold such information from the press. The premise of the issue in
U.S. Justice Department is that the State can collect and store in a central database
information on citizens gathered from public records across the country. In fact,
the law authorized the Department of Justice to collect and preserve fingerprints
and other criminal identification records nationwide. The law also authorized the
Department of Justice to exchange such information with officials of States, cities
and other institutions. The Department of Justice treated such information as
confidential. A CBS news correspondent and the Reporters Committee demanded
the criminal records of four members of a family pursuant to the Freedom of
Information Act. The U.S. Supreme Court ruled that the Freedom of Information
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Act expressly exempts release of information that would constitute an
unwarranted invasion of personal privacy, and the information demanded falls
under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal data
collected and recorded under EO 420 are treated as strictly confidential under
Section 6(d) of EO 420. These data are not only strictly confidential but also
personal matters. Section 7, Article III of the 1987 Constitution grants the right of
the people to information on matters of public concern. Personal matters are
exempt or outside the coverage of the peoples right to information on matters of
public concern. The data treated as strictly confidential under EO 420 being private
matters and not matters of public concern, these data cannot be released to the
public or the press. Thus, the ruling in U.S. Justice Department does not collide with
EO 420 but actually supports the validity EO 420.
Whalen v. Roe is the leading American case on the constitutional protection for
control over information. In Whalen, the U.S. Supreme Court upheld the validity of
a New York law that required doctors to furnish the government reports identifying
patients who received prescription drugs that have a potential for abuse. The
government maintained a central computerized database containing the names
and addresses of the patients, as well as the identity of the prescribing doctors. The
law was assailed because the database allegedly infringed the right to privacy of
individuals who want to keep their personal matters confidential. The U.S. Supreme
Court rejected the privacy claim, and declared:
Disclosures of private medical information to doctors, to hospital personnel, to
insurance companies, and to public health agencies are often an essential part of
modern medical practice even when the disclosure may reflect unfavorably on the
character of the patient. Requiring such disclosures to representatives of the State
having responsibility for the health of the community does not automatically
amount to an impermissible invasion of privacy. (Emphasis supplied)
Compared to the personal medical data required for disclosure to the New York
State in Whalen, the 14 specific data required for disclosure to the Philippine
government under EO 420 are far less sensitive and far less personal. In fact, the 14
specific data required under EO 420 are routine data for ID systems, unlike the
sensitive and potentially embarrassing medical records of patients taking

prescription drugs. Whalen, therefore, carries persuasive force for upholding the
constitutionality of EO 420 as non-violative of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned
Parenthood of Central Missouri v. Danforth,[16] the U.S. Supreme Court upheld the
validity of a law that required doctors performing abortions to fill up forms,
maintain records for seven years, and allow the inspection of such records by
public health officials. The U.S. Supreme Court ruled that recordkeeping and
reporting requirements that are reasonably directed to the preservation of
maternal health and that properly respect a patients confidentiality and privacy are
permissible.
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,[17] the U.S.
Supreme Court upheld a law that required doctors performing an abortion to file a
report to the government that included the doctors name, the womans age, the
number of prior pregnancies and abortions that the woman had, the medical
complications from the abortion, the weight of the fetus, and the marital status of
the woman. In case of state-funded institutions, the law made such information
publicly available. In Casey, the U.S. Supreme Court stated: The collection of
information with respect to actual patients is a vital element of medical research,
and so it cannot be said that the requirements serve no purpose other than to
make abortion more difficult.
Compared to the disclosure requirements of personal data that the U.S. Supreme
Court have upheld in Whalen, Danforth and Casey as not violative of the right to
privacy, the disclosure requirements under EO 420 are far benign and cannot
therefore constitute violation of the right to privacy. EO 420 requires disclosure of
14 personal data that are routine for ID purposes, data that cannot possibly
embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to privacy.
Petitioners cannot show such violation by a mere facial examination of EO 420
because EO 420 narrowly draws the data collection, recording and exhibition while
prescribing comprehensive safeguards. Ople v. Torres[18] is not authority to hold
that EO 420 violates the right to privacy because in that case the assailed executive
issuance, broadly drawn and devoid of safeguards, was annulled solely on the
ground that the subject matter required legislation. As then Associate Justice, now
Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v.
170
Torres, The voting is decisive only on the need for appropriate legislation, and it is
only on this ground that the petition is granted by this Court.
EO 420 applies only to government entities that already maintain ID systems and
issue ID cards pursuant to their regular functions under existing laws. EO 420 does
not grant such government entities any power that they do not already possess
under existing laws. In contrast, the assailed executive issuance in Ople v. Torres
sought to establish a National Computerized Identification Reference System,[19] a
national ID system that did not exist prior to the assailed executive issuance.
Obviously, a national ID card system requires legislation because it creates a new
national data collection and card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but makes the
existing sectoral card systems of government entities like GSIS, SSS, Philhealth and
LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO
420 is a proper subject of executive issuance under the Presidents constitutional
power of control over government entities in the Executive department, as well as
under the Presidents constitutional duty to ensure that laws are faithfully
executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared
VALID.
SO ORDERED.
F1: Kilusang Mayo Uno v. Director-General, National Economic Development
Facts:
President Arroyo issued Executive Order 450 which requires all government
agencies and controlled corporations to have a uniform identification card; the
director-general of the national economic development authority was tasked to
implement this order. The information required to be in the said identification card
would be: name, home address, sex, picture, signature, date of birth, place of birth,
marital status, names of parents, height, weight, two index fingers and two thumb
marks, any prominent distinguishing features like moles and others, tax
identification number (TIN). The petitioners argued that the said executive order
usurped legislative functions and violates the right of privacy. Petitioners alleged

that EO 450 is contrary to law because it violated the principle handed down by the
Court in Ople v Torres and RA 8282 or the Social Security Act of 1997. The order
according to the petitioners was also going to use funds that are not appropriated
by the Congress, it was also issued without a public hearing. The order was also
violating the constitutional provision of equal protection of the laws because it
discriminates and penalizes those who do not have an id. The petitioners also
argue that the order violates the right to privacy by allowing for the access of the
personal data of the owner without his or her consent.
Issue: Whether or not EO 450 usurped legislative functions and violated the
citizen’s right to privacy.
Held:
The Supreme Court ruled that the petition had no merit. The said order only
applies to government agencies who are already issuing identification cards even
before the said order was implemented. The purposes of the order were to: reduce
costs, achieve efficiency and reliability, convenience to the people served by the
government entities and insure compatibility. Section 17 Article VII of the
Constitution also provides for the President to have control to all executive
departments, bureaus and offices. This constitutional power of the President is
self-executing and does not need implementing legislation. This power of course is
limited to executive branch of the government and does not extend to other
branches or independent constitutional commissions. EO 450 does not violate the
right to privacy since no citizen particularly government employee have
complained upon the showing of information on their identification cards, even the
petitioners have not made any complaint about their own identification cards. EO
450 also issues identification cards that only have 14 data about the owner much
less than what is issued upon Supreme Court employees.
487 SCRA 623 – Political Law – Control Power of the President
This case is consolidated with Consolidated with Bayan Muna vs Ermita
In 2005, Executive Order No. 420 was passed. This law sought to harmonize and
streamline the country’s id system. Kilusang Mayo Uno, Bayan Muna, and other
concerned groups sought to enjoin the Director-General from implementing the EO
because they allege that the said EO is unconstitutional for it infringes upon the
171
right to privacy of the people and that the same is a usurpation of legislative power
by the president.
ISSUE: Whether or not the said EO is unconstitutional.
HELD:
No. Section 1 of EO 420 directs these government entities to “adopt a unified
multi-purpose ID system.” Thus, all government entities that issue IDs as part of
their functions under existing laws are required to adopt a uniform data collection
and format for their IDs.
Section 1 of EO 420 enumerates the purposes of the uniform data collection and
format. The President may by executive or administrative order direct the
government entities under the Executive department to adopt a uniform ID data
collection and format. Sec 17, Article 7 of the 1987 Constitution provides that the
“President shall have control of all executive departments, bureaus and offices.”
The same Section also mandates the President to “ensure that the laws be
faithfully executed.” Certainly, under this constitutional power of control the
President can direct all government entities, in the exercise of their functions under
existing laws, to adopt a uniform ID data collection and ID format to achieve
savings, efficiency, reliability, compatibility, and convenience to the public.
The President’s constitutional power of control is self-executing and does not need
any implementing legislation. Of course, the President’s power of control is
limited to the Executive branch of government and does not extend to the Judiciary
or to the independent constitutional commissions. Thus, EO 420 does not apply to
the Judiciary, or to the COMELEC which under existing laws is also authorized to
issue voter’s ID cards. This only shows that EO 420 does not establish a national ID
system because legislation is needed to establish a single ID system that is
compulsory for all branches of government.

EN BANC N O T I C E Sirs/Mesdames:
Please take notice that the Court en banc issued a Resolution dated FEBRUARY 14,
2012, which reads as follows:
“In Re: Production of Court Records and Documents and the Attendance of Court
officials and employees as witnesses under the subpoenas of February 10, 2012
and the various letters for the Impeachment Prosecution Panel dated January 19
and 25, 2012
RESOLUTION PER CURIAM:
Before us are the letters of Hon. Joseph Emilio A. Abaya, Congressman and
Impeachment Prosecution Panel Manager, in behalf of the House Impeachment
Panel, requesting for the actions described below.
These letters are:
(1) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman,
1st District, Cavite; Chairman, Committee on Appropriations; and Impeachment
Prosecution Panel Manager, writing in behalf of the House Impeachment Panel,
requesting that the Public Prosecutors, as well as the Private Prosecutors, be
permitted to examine, among others, the rollo of Flight Attendants and Stewards
Association of the Philippines (FASAP) v. Philippine Airlines, Inc. (PAL), et al., G.R.
No. 178083; LETTER dated January 25, 2012 of Hon. Irvin M. Alcala for Hon. Joseph
Emilio A. Abaya, in behalf of the House Impeachment Panel, Notice of Resolution -
2 - February 14, 2012 requesting for certified true copies of the Agenda and
Minutes of the Deliberations of, among others, the case of FASAP v. PAL, et al., G.R.
No. 178083.
(2) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman,
1st District, Cavite; Chairman, Committee on Appropriations; and Impeachment
Prosecution Panel Manager, writing in behalf of the House Impeachment Panel,
requesting that the Public Prosecutors, as well as the Private Prosecutors, be
permitted to examine, among others, the rollo of Navarro v. Ermita, G.R. No.
180050, April 12, 2011.
172
(3) LETTER dated January 25, 2012 of Hon. Irvin M. Alcala for Hon. Joseph Emilio A.
Abaya, Congressman, 1st District, Cavite; Chairman, Committee on Appropriations;
and Impeachment Prosecution Panel Manager, in behalf of the House
Impeachment Panel, requesting that the Public Prosecutors, as well as the Private
Prosecutors, be permitted to examine the rollo of the case of Ma. Merceditas N.
Gutierrez v. The House of Representatives Committee on Justice, et al., G.R. No.
193459.
(4) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman,
1st District, Cavite; Chairman, Committee on Appropriations; and Impeachment
Prosecution Panel Manager, writing in behalf of the House Impeachment Panel,
requesting that the Public Prosecutors, as well as the Private Prosecutors, be
permitted to examine, among others, the rollo of League of Cities v. COMELEC, G.R.
Nos. 176951, 177499 and 178056.
In an intervening development, the Hon. Impeachment Court directed the
attendance of witnesses Clerk of Court Enriqueta E. Vidal and Deputy Clerk of Court
Felipa Anama, and the production of documents per the subpoena ad
testificandum et duces tecum dated February 9, 2012 in the case of FASAP v. PAL:
1. Records/Logbook of the Raffle Committee showing the assignment of the FASAP
case; Notice of Resolution - 3 - February 14, 2012
2. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated
September 13, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona), in
connection with the FASAP case;
3. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated
September 20, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona), in
connection with the FASAP case;
4. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated
September 22, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona), in
connection with the FASAP case;
5. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated
September 16, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona; Hon.
Arturo D. Brion, Hon. Jose P. Perez, Hon. Lucas P. Bersamin and Hon. Jose C.

Mendoza), in connection with the FASAP case. Another subpoena ad testificandum
dated February 10, 2012 directs Clerk of Court Vidal, in the case of former
President Gloria MacapagalArroyo (G.R. No. 199034) and former First Gentleman
Jose Miguel Arroyo (G.R. No. 199046) to bring with her, for submission to the
Impeachment Court, the following:
1. Supreme Court received (with time and date stamp) Petition for Special Civil
Actions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction filed by Gloria
Macapagal Arroyo (G.R. No. 199034) (GMA TRO Petition), including the Annexes
thereto;
2. Supreme Court received (with time and date stamp) Petition for Special Civil
Actions for Certiorari and Prohibition with Prayer for Notice of Resolution - 4 -
February 14, 2012 the Issuance of a TRO and/or Writ of Preliminary Injunction
docketed as G.R. No. 199046 (Mike Arroyo TRO Petition), including the Annexes
thereto;
3. Respondent Corona’s travel order or leave applied for within the month of
November 2011;
4. Minutes of the Supreme Court Raffle Committee which handled the GMA and
Mike Arroyo TRO Petitions;
5. Appointment or Assignment of the Member-in-Charge of the GMA and Mike
Arroyo TRO Petitions;
6. Resolution dated November 15, 2011 in the GMA and Mike Arroyo TRO
Petitions;
7. TRO dated November 15, 2011 issued in the GMA and Mike Arroyo TRO
Petitions;
8. Logbook or receiving copy showing the time the TRO was issued to the counsel
of GMA and Mike Arroyo, as well as the date and time the TRO was received by the
Sheriff for service to the parties;
173
9. Special Power of Attorney dated November 15, 2011 submitted by GMA and
Mike Arroyo in favor of Atty. Ferdinand Topacio and Anacleto M. Diaz, in
compliance with the TRO dated November 15, 2011;
10.Official Receipt No. 00300227-SC-EP dated November 15, 2011 issued by the
Supreme Court for the Two Million Pesos Cash Bond of GMA and Mike Arroyo, with
the official date and time stamp; Notice of Resolution - 5 - February 14, 2012
11.November 15 and 16, 2011 Sheriff’s Return for service of the GMA and Mike
Arroyo TRO dated November 15, 2011, upon the Department of Justice and the
Office of the Solicitor General;
12.Certification from the Fiscal Management and Budget Office of the Supreme
Court dated November 15, 2011, with the date and time it was received by the
Supreme Court Clerk of Court showing it to be November 16, 2011 at 8:55 a.m.;
13.Resolution dated November 18, 2011 issued in the GMA and Mike Arroyo TRO
Petitions;
14.Resolution dated November 22, 2011 on the GMA and Mike Arroyo TRO
Petitions;
15.Logbook showing the date and time Justice Sereno’s dissent to the November
22, 2011 Resolution was received by the Clerk of Court En Banc;
16.Dissenting Opinions dated November 13 and 18, 2011, and December 13, 2011
of Justice Sereno on the GMA and Mike Arroyo TRO Petitions;
17.Dissenting Opinions dated November 15, 2011 and December 13, 2011 of
Justice Carpio on the GMA and Mike Arroyo TRO Petitions;
18.Separate Opinion dated December 13, 2011 of Justice Velasco on the GMA and
Mike Arroyo TRO Petitions;
19.Concurring Opinion dated December 13, 2011 of Justice Abad on the GMA and
Mike Arroyo TRO Petitions;

20.Official Appointment of Respondent Corona as Associate Justice of the Supreme
Court; and Notice of Resolution - 6 - February 14, 2012 21.Official Appointment of
Respondent Corona as Chief Justice.
A Brief Statement of Relevant Background Facts and Developments During the
impeachment proceedings against Chief Justice Corona, the Prosecution Panel
manifested in a COMPLIANCE dated January 27, 2012 that it would present about
100 witnesses and almost a thousand documents, to be secured from both private
and public offices. The list of proposed witnesses included Justices of the Supreme
Court, and Court officials and employees who will testify on matters, many of
which are, internal to the Court. It was at about this time that the letters, now
before us, were sent. The letters asked for the examination of records, and the
issuance of certified true copies of the rollos and the Agenda and Minutes of the
Deliberations, as above described, for purposes of Articles 3 and 7 of the
Impeachment Complaint.
These letters specifically focused on the following:
a. with respect to the Flight Attendants and Stewards Association of the Philippines
v. Philippine Airlines, Inc. case 1 (presently pending on the merits), the examination
of the rollo of the case and the issuance of certified true copies of the Agenda and
the Minutes of the case;
b. with respect to Navarro v. Ermita2 or the Dinagat case (still pending on the
merits), the examination of the rollo of the case; 1 G.R. No. 178083, July 22, 2008,
559 SCRA 252.
In its Decision, the Court declared illegal the retrenchment of more than 1,000
flight attendants and cabin crew personnel of the flag carrier. The ruling was
reiterated in the Resolutions dated October 2, 2009 and September 7, 2011.
However, on October 4, 2011, the Court recalled the September 7, 2011 Resolution
when questions were raised as to the authority of the Second Division to issue the
September 7, 2011 Resolution. 2 G.R. No. 180050, February 10, 2010, 612 SCRA
131.
In its Decision (affirmed in a Resolution dated May 12, 2010), the Court held that
Republic Act No. (RA) 9355, the law creating Dinagat Province, was unconstitutional
174
for failing to comply with the territorial and population requirements under Section
261 of Notice of Resolution - 7 - February 14, 2012 c. with respect to Ma.
Merceditas N. Gutierrez v. The House of Representatives Committee on Justice, et
al.3 (a closed and terminated case), the examination of the rollo of the case; and
d. with respect to League of Cities of the Philippines (LCP) v. COMELEC, 4 (a closed
and terminated case) the examination of the rollo of the case.
Per its MANIFESTATION in open court in the impeachment trial of February 7 and 8,
2012, the House Impeachment Panel requested the Impeachment Court for the
issuance of subpoena duces tecum and ad the Local Government Code (LGC). The
Court stressed that Dinagat Islands had a population of 120,813 which was below
the LGC minimum population requirement of 250,000 inhabitants. Neither did
Dinagat Islands, with an approximate land area of 802.12 square kilometers as
stated in RA 9355, meet the LGC minimum land area requirement of 2,000 square
kilometers. However, in its Resolution dated April 12, 2011, the Court reversed its
earlier ruling and upheld RA 9355.
The Court ruled that consistent with the declared policy to provide local
government units genuine and meaningful local autonomy, contiguity, and
minimum land area requirements for prospective local government units, R.A. No.
9355 should be liberally construed in order to achieve the desired results. The strict
interpretation adopted by the February 10, 2010 decision could be counter-
productive, if not outright absurd, awkward, and impractical, it added. 3 G.R. No.
193459, February 15, 2011. In a petition for certiorari and prohibition, then
Ombudsman Gutierrez challenged the constitutionality of the September 1 and 7,
2010 Resolutions of The House of Representatives Committee on Justice finding
the two successively filed impeachment complaints against her sufficient in form
and substance. In its Decision (affirmed in a Resolution dated March 8, 2011), the
Court dismissed the petition and held that the September 1 and 7, 2010
Resolutions were not unconstitutional. In this case, the Court held that the term
“initiate” refers to the filing of the impeachment complaint coupled with Congress’
taking initial action of said complaint, thus the simultaneous referral of the two
complaints did not violate the one year-bar rule in the Constitution.
The Court also found that there was no violation of the petitioner’s right to due
process since it is in no position to dictate a mode of promulgation beyond the
dictates of the Constitution - which did not explicitly require that the Impeachment

Rules be published. 4 G.R. No. 176951, November 18, 2008, 571 SCRA 263. The
Court, by a 6-5 vote, granted the petitions and struck down the Cityhood Laws
(creating 16 new cities) as unconstitutional for violating Sections 10 and 6, Article
X, and the equal protection clause. On March 31, 2009, the Court, by a 7-5 vote,
denied the first motion for reconsideration. On April 28, 2009, the Court, by a 6-6
vote, denied a second motion for reconsideration for being a prohibited pleading.
However, the Court, in its June 2, 2009 Resolution, clarified that since it voted on
the second motion for reconsideration and that it allowed the filing of the same,
the second motion for reconsideration was no longer a prohibited pleading.
It noted that it was for lack of the required number of votes to overturn the
November 18, 2009 Decision and the March 31, 2009 Resolution that it denied the
second motion for reconsideration in its April 28, 2009 Resolution. On December
21, 2009, acting anew on the second motion for reconsideration, the Court, by a
vote of 6-4, declared the Cityhood Laws as constitutional.
On August 24, 2010, the Court, this time by a vote of 7-6, reinstated the November
18, 2008 Decision. In a Resolution dated February 15, 2011, the Court, by a vote of
7-6, granted the motion for reconsideration of its August 24, 2010 Resolution,
reversed and set aside its August 24, 2010 Resolution, and declared constitutional
the Cityhood Laws. The latest and final Resolution, dated April 12, 2011, affirmed
the ruling in the February 15, 2011 Resolution.
Notice of Resolution - 8 - February 14, 2012 testificandum for the production of
records of cases, and the attendance of Justices, officials and employees of the
Supreme Court, to testify on these records and on the various cases mentioned
above. Instead of issuing subpoenas as requested, the Hon. Presiding SenatorJudge
Juan Ponce Enrile, on February 8, 2012, issued an Order denying the Prosecution
Panel’s request for subpoena ad testificandum to JJ. Villarama, Sereno, Reyes and
Velasco (In re: Impeachment Trial of Hon. Chief Justice Renato C. Corona, Case No.
002-2011).
Thus, the attendance of Supreme Court Justices under compulsory process now
appears to be moot and academic. If they are included at all in the discussions
below, reference to them is for purposes only of a holistic presentation and as
basic premises that serve as the bases for the disqualification of Court officials and
employees, and the exclusion of privileged and confidential documents and
information. On February 10, 2012, Atty. Vidal, Clerk of the Supreme Court,
175
brought to our attention the Subpoena Ad Testificandum et Duces Tecum and
Subpoena Ad Testificandum she received, commanding her to appear at 10:00 in
the morning of the 13th of February 2012 with the original and certified true copies
of the documents listed above, and to likewise appear in the afternoon at 2:00 of
the same day and everyday thereafter, to produce the above listed documents and
to testify. In light of the subpoenas served, the urgent need for a court ruling and
based on the Constitution, the pertinent laws and of the Court’s rules and policies,
we shall now determine how the Court will comply with the subpoenas and the
letters of the Prosecution Impeachment Panel. Prefatory Statement Notice of
Resolution - 9 - February 14, 2012 The Court states at the outset that this
Resolution is issued not to favor or prejudice the Chief Justice whose impeachment
gave rise to the letters and the subpoenas under consideration, but to simply
consider the requests and the subpoenas in light of what the Constitution, the
laws, and our rules and policies mandate and allow.
From the constitutional perspective, a necessary starting vantage point in this
consideration is the principle of separation of powers through the recognition of
the independence of each branch of government and through the protection of
privileged and confidential documents and processes, as recognized by law, by the
rules and by Court policies. The Independence of the Judiciary The doctrine of
separation of powers is an essential component of our democratic and republican
system of government. The doctrine inures not by express provision of the
Constitution, but as an underlying principle that constitutes the bedrock of our
system of checks and balances in government.5
It divides the government into three branches, each with welldefined powers. In its
most basic concept, the doctrine declares that the legislature enacts the law, the
executive implements it, and the judiciary interprets it. Each branch is considered
separate, co-equal, coordinate and supreme within its own sphere, under the legal
and political reality of one overarching Constitution that governs one government
and one nation for whose benefit all the three separate branches must act with
unity.
Necessarily under this legal and political reality, the mandate for each branch is to
ensure that its assigned constitutional duties are duly performed, all for the one
nation that the three branches are sworn to serve, obey and protect, among
others, by keeping the government stable and 5 See Angara v. Electoral

Commission, 63 Phil. 139, 156-157 (1936). Notice of Resolution - 10 - February 14,
2012 running.
The Court's mandate, in so far as these constitutional principles are concerned, is
to keep the different branches within the exercise of their respective assigned
powers and prerogatives through the Rule of Law.
6 A lesser known but no less important aspect of the principle of separation of
powers – deemed written into the rules by established practice and rendered
imperative by the departments’ inter-dependence and need for cooperation
among themselves – is the principle of comity or the practice of voluntarily
observing inter-departmental courtesy in undertaking their assigned constitutional
duties for the harmonious working of government.
The Judiciary applies the principle of comity at the first instance in its interpretation
and application of laws. In appreciating the areas wholly assigned to a particular
branch for its sole and supreme exercise of discretion (i.e., on political questions
where the courts can intervene only when the assigned branch acts with grave
abuse of discretion), the courts tread carefully; they exercise restraint and
intervene only when the grave abuse of discretion is clear and even then must act
with carefully calibrated steps, safely and surely made within constitutional
bounds.
The two other branches, for their part, may also observe the principle of comity by
voluntarily and temporarily refraining from continuing with the acts questioned
before the courts. Where doubt exists, no hard and fast rule obtains on how due
respect should be shown to each other; largely, it is a weighing of the public
interests involved, as against guaranteed individual rights and the attendant larger
public interests, and it is the latter consideration that ultimately prevails. A case in
point is on the matter of impeachment whose trial has been specifically assigned by
the Constitution to the Senate. Where doubt exists in an impeachment case, a
standard that should not be forgotten 6 Neri v. Senate Committee on
Accountability of Public Officers and Investigations, G.R. No. 180643, March 25,
2008, 549 SCRA 77. Notice of Resolution - 11 - February 14, 2012 is the need to
preserve the structure of a democratic and republican government, particularly the
check and balance that should prevail.
176
Access to court records: general rule – a policy of transparency Underlying every
request for information is the constitutional right to information (a right granted to
the people) that Article III, Section 7 of the Constitution provides: Section 7. The
right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to officials acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law. [emphases ours]
The right to information, by its very nature and by the Constitution’s own terms, is
not absolute. On the part of private individuals, the right to privacy, similarly
inviolable, exists. Institutions also enjoy their own right to confidentiality, that, for
governmental departments and agencies, is expressed in terms of their need to
protect the integrity of their mandated tasks under the Constitution and the laws;
these tasks, to state the obvious, are their reasons for their being.
In line with the public’s constitutional right to information, the Court has adopted a
policy of transparency with respect to documents in its possession or custody,
necessary to maintain the integrity of its sworn duty to adjudicate justiciable
disputes.7 This policy, in terms of Court Rules, is embodied in Section 11, Rule 136
of the Rules of Court,8 which states:
Section. 11. Certified copies.—The clerk shall prepare, for any person demanding
the same, a copy certified under the seal of 7 CONSTITUTION, Article VIII, Section 1.
8 Section 5(5) of the Constitution directly grants the Court the power to
promulgate rules concerning proceedings in court. These rules have the same force
and effect as legislated laws.
Notice of Resolution - 12 - February 14, 2012 the court of any paper, record, order,
judgment, or entry in his office, proper to be certified, for the fees prescribed by
these rules. [emphases ours]
Notably, the rule grants access to court records to any person, subject to payment
of fees and compliance with rules; it is not necessary that the request be made by a
party to the case. This grant, however, is not as open nor as broad as its plain terms
appear to project, as it is subject to the limitations the laws and the Court’s own
rules provide. As heretofore stated, for the Court and the Judiciary, a basic
underlying limitation is the need to preserve and protect the integrity of their main

adjudicative function. When Court Records are considered Confidential In the
Judiciary, privileges against disclosure of official records “create a hierarchy of
rights that protect certain confidential relationships over and above the public’s
evidentiary need” or “right to every man’s evidence.”9 Accordingly, certain
informations contained in the records of cases before the Supreme Court are
considered confidential and are exempt from disclosure.
To reiterate, the need arises from the dictates of the integrity of the Court’s
decision-making function which may be affected by the disclosure of information.
Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the disclosure
of (1) the result of the raffle of cases, (2) the actions taken by the Court on each
case included in the agenda of the Court’s session, and (3) the deliberations of the
Members in court sessions on cases and matters pending before it. 9 John Louis
Kellogg. What’s Good for the Goose… Differential Treatment of the Deliberative
Process and Self-Critical Analysis Privileges, 52 Journal of Urban and Contemporary
Law 255 (1997), citing US v. Bryan, 339 US 323, 331 (1950).
Notice of Resolution - 13 - February 14, 2012 Rule 7, Section 3 of the IRSC10
declares that the results of the raffle of cases shall only be available to the parties
and their counsels, unless the cases involve bar matters, administrative cases and
criminal cases involving the penalty of life imprisonment, which are treated with
strict confidentiality and where the raffle results are not disclosed even to the
parties themselves.11 Rule 10, Section 2 of the IRSC provides that the actions taken
in each case in the Court’s agenda, which are noted by the Chief Justice or the
Division Chairman, are also to be treated with strict confidentiality. Only after the
official release of the resolution embodying the Court action may that action be
made available to the public.12
A resolution is considered 10 IRSC, Rule 7 – Raffle of Cases, Section 3. Raffle
Committee Secretariat. – The Clerk of Court shall serve as the Secretary of the
Raffle Committee. He or she shall be assisted by a court attorney, duly designated
by the Chief Justice from either the Office of the Chief Justice or the Office of the
Clerk of Court, who shall be responsible for (a) recording the raffle proceedings and
(b) submitting the minutes thereon to the Chief Justice. The Clerk of Court shall
make the result of the raffle available to the parties and their counsels or to their
duly authorized representatives, except the raffle of (a) bar matters; (b)
administrative cases; and (c) criminal cases where the penalty imposed by the
177
lower court is life imprisonment, and which shall be treated with strict
confidentiality. [emphases ours] 11 See also IRSC, Rule 9, Sections 2 and 4 which
declare:
RULE 9 FOLDER OF PLEADINGS, COMMUNICATIONS, DOCUMENTS AND OTHER
PAPERS IN A CASE Section 2. Repository of rollos. – All rollos of cases submitted for
decision shall be kept in the Rollo Room in the Office of the Chief Justice, except
when taken out for delivery to any of the following: (1) the Judicial Records Office
for attachment of a pleading, communication, document or other papers filed; (2)
the Office of the Clerk of Court or the Office of the Division Clerk of Court, for the
preparation of the Agenda and of the Minutes of a Court session, as well for the
attachment of the decisions or resolutions to the rollo; (3) the Office of the
Member-in-Charge or the Office of the ponente or writer of the decision or
resolution; (4) any Office or official charged with the study of the case. All
personnel charged with the safekeeping and distribution of rollos shall be bound by
strict confidentiality on the identity of the Member-in-Charge or the ponente, as
well as on the integrity of the rollos, under pain of administrative sanction and
criminal prosecution for any breach thereof.
Section 4. Confidentiality of identity of Member-in-Charge or ponente and of Court
actions. – Personnel assigned to the Rollo Room and all other Court personnel
handling documents relating to the raffling of cases are bound by strict
confidentiality on the identity of the Member-in-Charge or ponente and on the
actions taken on the case. Rollo Room personnel may release a rollo only upon an
official written request from the Chief Judicial Staff Head or the Chief of Office of
the requesting Office. The rollo room personnel may release a rollo only to an
authorized personnel named in the official written request. All personnel handling
the rollos are bound by the same strict confidentiality rules. [emphases ours] 12
IRSC, Rule 11, Section 5, which states:
RULE 11 AGENDA AND MINUTES OF COURT SESSIONS Section 5. Confidentiality of
minutes prior to release. – The Offices of the Clerk of Court and of the Division
Clerks of Court are bound by strict confidentiality on the Notice of Resolution - 14 -
February 14, 2012 officially released once the envelope containing its final copy,
addressed to the parties, has been transmitted to the process server for personal
service or to the mailing section of the Judicial Records Office. Court deliberations
are traditionally recognized as privileged communication. Section 2, Rule 10 of the

IRSC provides: Section 2. Confidentiality of court sessions. – Court sessions are
executive in character, with only the Members of the Court present. Court
deliberations are confidential and shall not be disclosed to outside parties, except
as may be provided herein or as authorized by the Court. [emphasis ours] Justice
Abad discussed the rationale for the rule in his concurring opinion to the Court
Resolution in Arroyo v. De Lima13 (TRO on Watch List Order case): the rules on
confidentiality will enable the Members of the Court to “freely discuss the issues
without fear of criticism for holding unpopular positions” or fear of humiliation for
one’s comments.14
The privilege against disclosure of these kinds of information/communication is
known as deliberative process privilege, involving as it does the deliberative
process of reaching a decision. “Written advice from a variety of individuals is an
important element of the government’s decision-making process and that the
interchange of advice could be stifled if courts forced the government to disclose
those recommendations;”15 the privilege is intended “to prevent the ‘chilling’ of
deliberative communications.”16 action or actions taken by the Court prior to the
approval of the draft of the minutes of the court session release of the resolutions
embodying the Court action or actions.
A resolution is considered officially released once the envelope containing a final
copy of it addressed to the parties has been transmitted to the process server for
personal service or to the mailing section of the Judicial Records Office. Only after
its official release may a resolution be made available to the public. [emphases
ours] 13 G.R. Nos. 199034 & 199046, December 13, 2011. 14 Id.; see J. Abad
Concurring Opinion. 15 John Louis Kellogg, supra note 9, citing Kaiser Aluminum &
Chemical Corporation v. US, 157 F. Supp. at 943. 16 Gerald Watlaufer, Justifying
Secrecy: An Objection to the General Deliberative Privilege. 65 Indiana Law Journal
845, 850. Notice of Resolution - 15 - February 14, 2012 The privilege is not exclusive
to the Judiciary. We have in passing recognized the claim of this privilege by the
two other branches of government in Chavez v. Public Estates Authority17
(speaking through J. Carpio) when the Court declared that - [t]he information x x x
like internal deliberations of the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress, are recognized as confidential. This
kind of information cannot be pried open by a co-equal branch of government.
178
A frank exchange of exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power.
18 (emphases ours) Justice Brion noted this fact in his Separate Concurring Opinion
in Neri v. Senate Committee on Accountability of Public Officers and Investigations:
19 Significantly, this type of privilege is not for the Executive to enjoy alone. All the
great branches of government are entitled to this treatment for their own decision
and policy making conversations and correspondence. It is unthinkable that the
disclosure of internal debates and deliberations of the Supreme Court or the
executive sessions of either Houses of Congress can be compelled at will by outside
parties. [emphasis ours]
Thus, a Senator may invoke legislative privilege when he or she is questioned
outside the Senate about information gathered during an executive session of the
Senate’s legislative inquiry in aid of legislation. In the same manner, a justice of the
court or a judge may invoke judicial privilege in the Senate sitting as an
Impeachment Court, for proceedings in the performance of his or her own judicial
functions.
What applies to magistrates applies with equal force to court officials and
employees who are privy to these deliberations. They may likewise claim
exemption when asked about this privileged information. 17 433 Phil. 506 (2002).
18 Id. at 534. 19 Supra note 6, at 399. This is a case in point as it involved the
confidentiality of communications between a former President and one of her
Cabinet members.
Notice of Resolution - 16 - February 14, 2012 While Section 2, Rule 10 of the IRSC
cited above speaks only of the confidentiality of court deliberations, it is
understood that the rule extends to documents and other communications which
are part of or are related to the deliberative process.20 The deliberative process
privilege protects from disclosure documents reflecting advisory opinions,
recommendations and deliberations that are component parts of the process for
formulating governmental decisions and policies. Obviously, the privilege may also
be claimed by other court officials and employees when asked to act on these
documents and other communications.

The Code of Conduct for Court Personnel in fact provides that access shall be
denied with respect to information or records relating to drafts of decisions,
rulings, orders, or internal memoranda or internal reports. In the 2007 Resolution
on Access to Justice for the Poor Project, 21 the Court excluded the same
information and records from the public by classifying them as confidential:
Article 1. Definition of Terms. 2. Confidential information generally refers to
information not yet made a matter of public record relating to pending cases, such
as notes, drafts, research papers, internal discussion, internal memoranda, records
of internal deliberations, and similar papers. Even after the decision, resolution, or
order is made public, such information that a justice or judge uses in preparing a
decision, resolution, or order shall remain confidential. [emphases ours]
To qualify for protection under the deliberative process privilege, the agency must
show that the document is both (1) predecisional and (2) deliberative. 22 20 Gerald
Watlaufer, supra note 16, at 851, which states: Generally, the privilege extends to
written and oral communications comprised of opinions, recommendations or
advice offered in the court of the executive’s decision-making processes. 21
Access to Justice for the Poor Project – Information Education, Communication
Guidelines for Municipal Court Information Officers, A.M. No. 05-2-01-SC, March
13, 2007. 22 Electronic Frontier Foundation v. US Department of Justice, 2011 WL
596637. Notice of Resolution - 17 - February 14, 2012 A document is
“predecisional” under the deliberative process privilege if it precedes, in temporal
sequence, the decision to which it relates.23 In other words, communications are
considered predecisional if they were made in the attempt to reach a final
conclusion. 24 A material is “deliberative,” on the other hand, if it reflects the
giveand-take of the consultative process.25
The key question in determining whether the material is deliberative in nature is
whether disclosure of the information would discourage candid discussion within
the agency. 26 If the disclosure of the information would expose the government’s
decisionmaking process in a way that discourages candid discussion among the
decision-makers (thereby undermining the courts’ ability to perform their
functions), the information is deemed privileged.
Court records which are “predecisional” and “deliberative” in nature are thus
protected and cannot be the subject of a subpoena if judicial privilege is to be
179
preserved. The privilege in general insulates the Judiciary from an improper
intrusion into the functions of the judicial branch and shields justices, judges, and
court officials and employees from public scrutiny or the pressure of public opinion
that would impair a judge’s ability to render impartial decisions.27 The deliberative
process can be impaired by undue exposure of the decision-making process to
public scrutiny before or even after the decision is made, as discussed below.
Additionally, two other grounds may be cited for denying access to court records,
as well as preventing members of the bench, from being subjected to compulsory
process: (1) the disqualification by reason of privileged communication and (2) the
pendency of an action or matter. 23 Ibid. 24 See NLRB v. Sears, Roebuck & Co., 421
US 151. 25 Electronic Frontier Foundation v. US Department of Justice, supra note
22. 26 Ibid. 27 Kevin C. Milne.
The Doctrine of Judicial Privilege: The Historical and Constitutional Basis Supporting
a Privilege for the Federal Judiciary, 44 WASH & LEE L. REV. 213 (1987). Notice of
Resolution - 18 - February 14, 2012 The prohibition against disclosure of
confidential information is required to be observed by members of the Court under
the New Code of Judicial Conduct for the Philippine Judiciary. Section 9, Canon 4
(Propriety) states: Section 9. Confidential information acquired by judges in their
judicial capacity shall not be used or disclosed for any other purpose related to
their judicial duties. [emphasis ours] This rule of judicial ethics complements the
rule of evidence that disqualifies public officials from testifying on information they
acquire in confidence in the course of their duties: Rules of Court, Rule 130, Section
24. Disqualification by reason of privileged communication. – The following persons
cannot testify as to matters learned in confidence in the following cases: x x x x (e)
A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the
public interest would suffer by the disclosure. [emphasis ours]
To ensure the observance of these rules, the improper disclosure of confidential
information learned in official capacity is made criminally punishable under Article
229 of the Revised Penal Code, 28 Section 3 (k) of Republic Act No. 3019, or the
Anti-Graft and Corrupt Practices Act,29 and 28 This provision of law states: ART.
229. Revelation of secrets by an officer. – Any public officer who shall reveal any
secret known to him by reason of his official capacity, or shall wrongfully deliver
papers or copies of papers of which he may have charge and which should not be

published, shall suffer penalties of prision correccional in its medium and maximum
periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if
the revelation of such secrets or the delivery of such papers shall have caused
serious damage to the public interest; otherwise, the penalties of prision
correccional in its minimum period, temporary special disqualification and a fine
not exceeding P500 pesos shall be imposed.
29 This provision of law states: SEC. 3. Corrupt practices of public officers. – In
addition to acts or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful: x x x x Notice of Resolution - 19 - February 14, 2012 Sec. 7
of Republic Act No. 6713, or the Code of Conduct and Ethical Standards for Public
Official and Employees.30 Under existing laws, neither the Impeachment Court nor
the Senate has the power to grant immunity from criminal prosecution for
revealing confidential information.
Under the law, therefore, the Members of the Court may not be compelled to
testify in the impeachment proceedings against the Chief Justice or other Members
of the Court about information they acquired in the performance of their official
function of adjudication, such as information on how deliberations were conducted
or the material inputs that the justices used in decision-making, because the end-
result would be the disclosure of confidential information that could subject them
to criminal prosecution. Such act violates judicial privilege (or the equivalent of
executive privilege) as it pertains to the exercise of the constitutional mandate of
adjudication. Jurisprudence implies that justices and judges may not be subject to
any compulsory process in relation to the performance of their adjudicatory
functions.
In Senate of the Philippines v. Exec. Sec. Ermita, 31 the Court declared that
members of the Supreme Court are also exempt from [the Congress’] power of
inquiry [in aid of legislation]. Unlike the Presidency, judicial power is vested in a
collegial body; hence, each member thereof is exempt on the basis not only of
separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary. (k) Divulging valuable information of a confidential
character, acquired by his office or by him on account of his official position to
authorized persons, or releasing such information in advance of its authorized
release date.
180
30 This provision states: SEC. 7. Prohibited Acts and Transactions. – In addition to
acts and omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited acts and
transactions of any public official and employee and are hereby declared to be
unlawful: x x x x (c) Disclosure and/or misuse of confidential information. – Public
officials and employees shall not use or divulge, confidential or classified
information officially known to them by reason of their office and not made
available to the public, either: (1) To further their private interests, or give undue
advantage to anyone; or (2) To prejudice the public interest. [emphasis ours] 31
522 Phil. 1, 49 (2006). Notice of Resolution - 20 - February 14, 2012 This ruling was
dictated in no small measure by the principle of comity mentioned above. Inter-
departmental courtesy demands that the highest levels of each department be
exempt from the compulsory processes of the other departments on matters
related to the functions and duties of their office. With respect to Court officials
and employees, the same rules on confidentiality that apply to justices and judges
apply to them.
They are barred from disclosing (1) the result of the raffle of cases, (2) the actions
taken by the Court on each case included in the agenda of the Court’s session, and
(3) the deliberations of the Members in court sessions on cases and matters
pending before it. They are subject as well to the disqualification by reason of
privileged communication and the sub judice rule. As stated above, these rules
extend to documents and other communications which cannot be disclosed. These
privileges, incidentally, belong to the Judiciary and are for the Supreme Court (as
the representative and entity speaking for the Judiciary), and not for the individual
justice, judge, or court official or employees to waive.
Thus, every proposed waiver must be referred to the Supreme Court for its
consideration and approval. In fine, there are Philippine laws, rules and
jurisprudence prohibiting the revelation of confidential or “secret” information that
causes damage to public interest even in judicial and other proceedings such as the
sui generis impeachment trial. As far as the Court is concerned, its Members and
officials involved in all proceedings are duty-bound to observe the privileged
communication and confidentiality rules if the integrity of the administration of
justice were to be preserved – i.e., not even Members of the Court, on their own
and without the consent of the Supreme Court, can Notice of Resolution - 21 -

February 14, 2012 testify on matters covered by the prohibitions and exclusions,
particularly with respect to matters pending resolution before the Supreme Court.
To state the rule differently, Justices of the Court cannot be compelled to testify on
matters relating to the internal deliberations and actions of the Court, in the
exercise of their adjudicatory functions and duties. This is to be differentiated from
a situation where the testimony is on a matter which is external to their
adjudicatory functions and duties. For example, where the ground cited in an
impeachment complaint is bribery, a Justice may be called as a witness in the
impeachment of another Justice, as bribery is a matter external to or is not
connected with the adjudicatory functions and duties of a magistrate.
A Justice, however, may not be called to testify on the arguments the accused
Justice presented in the internal debates as these constitute details of the
deliberative process. Public interest, among others, demands that justices, judges
and judicial proceedings must not only be, but must appear to be impartial since an
impartial tribunal is a component of the right to due process that the Constitution
guarantees to every individual. Section 4, Canon 3 of the New Code of Judicial
Conduct for the Philippine Judiciary requires that - Section 4. Judges shall not
knowingly, while a proceeding is before or could come before them, make any
comment that might reasonably be expected to affect the outcome of such
proceeding or impair the manifest fairness of the process. Nor shall judges make
any comment in public or otherwise that might affect the fair trial of any person or
issue.
As a penultimate point, witnesses need not be summoned to testify on matters of
public record. These are the records that a government unit is required by law to
keep or which it is compelled to keep in the discharge of duties imposed by law. A
record is a public record within the purview of a statute providing that books and
records required by law to be kept by a Notice of Resolution - 22 - February 14,
2012 clerk may be received in evidence in any court if it is a record which a public
officer is required to keep and if it is filled in such a manner that it is subject to
public inspection.32 Under the Rules of Court, the rule on public records is
embodied in Section 44, Rule 130 which provides: Section 44.
Entries in official records. - Entries in official records made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of
a duty specially enjoined by law, are prima facie evidence of the facts therein
181
stated. To restate the rule, entries in official records may be presented without the
necessity of presenting in court the officer or person who made the entries.33
Entries in public or official books or records may be proved by the production of
the books or records themselves or by a copy certified by the legal keeper
thereof.34
These records, however, may be presented and marked in evidence only where
they are not excluded by reasons of privilege and the other reasons discussed
above. The reasons for this rule are necessity and trustworthiness. Necessity
consists in the inconvenience and difficulty of requiring the official’s attendance as
a witness to testify to the innumerable transactions in the course of his duty. A
public officer is excused from appearing in court in order that public business may
not be interrupted, hampered or delayed. Where there is no exception for official
statements, hosts of officials would be found devoting the greater part of their
time attending as witnesses in court, delivering their deposition before an
officer.35
Trustworthiness is a reason because of the presumption of regularity of
performance of official duty. The law reposes a particular confidence in public
officers that it presumes that they will discharge their several 32 Black’s Law
Dictionary (5th ed.), p. 1107. 33 Oscar M. Herrera. Remedial Law (19th ed.), p. 740.
34 Vicente J. Francisco. Evidence, Volume II (1997 ed.), p. 620. 35 Ibid. Notice of
Resolution - 23 - February 14, 2012 trusts with accuracy and fidelity; and therefore,
whatever acts they do in the discharge of their public duty may be given in
evidence and shall be taken to be true under such a degree of caution as the nature
and circumstances of each case may appear to require.36 Thus, “[t]he
trustworthiness of public documents and the value given to the entries made
therein could be grounded on:
1) the sense of official duty in the preparation of the statement made,
2) the penalty which is usually affixed to a breach of that duty,
3) the routine and disinterested origin of most such statements, and
4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.”37 As a last point and mainly for purposes of stress, the
privileges discussed above that apply to justices and judges apply mutatis mutandis

to court officials and employees with respect to their official functions. If the intent
only is for them to identify and certify to the existence and genuineness of
documents within their custody or control that are not otherwise confidential or
privileged under the above discussed rules, their presence before the
Impeachment Court can be and should be excused where certified copies of these
non-privileged and non-confidential documents can be provided. In sum, Philippine
law, rules and jurisprudence prohibit the disclosure of confidential or privileged
information under well-defined rules.
At the most basic level and subject to the principle of comity, Members of the
Court, and Court officials and employees may not be compelled to testify on
matters that are part of the internal deliberations and actions of the Court in the
exercise of their adjudicatory functions and duties, while testimony on matters
external to their adjudicatory functions and duties may be compelled by
compulsory processes. 36 Id. 37 Tecson v. Commission on Elections, G.R. Nos.
161434, 161634, and 161824, March 3, 2004, 424 SCRA 277, 336. Notice of
Resolution - 24 - February 14, 2012
To summarize these rules, the following are privileged documents or
communications, and are not subject to disclosure: (1) Court actions such as the
result of the raffle of cases and the actions taken by the Court on each case
included in the agenda of the Court’s session on acts done material to pending
cases, except where a party litigant requests information on the result of the raffle
of the case, pursuant to Rule 7, Section 3 of the IRSC; (2) Court deliberations or the
deliberations of the Members in court sessions on cases and matters pending
before the Court; (3) Court records which are “predecisional” and “deliberative” in
nature, in particular, documents and other communications which are part of or
related to the deliberative process, i.e., notes, drafts, research papers, internal
discussions, internal memoranda, records of internal deliberations, and similar
papers. (4) Confidential Information secured by justices, judges, court officials and
employees in the course of their official functions, mentioned in (2) and (3) above,
are privileged even after their term of office. (5) Records of cases that are still
pending for decision are privileged materials that cannot be disclosed, except only
for pleadings, orders and resolutions that have been made available by the court to
the general public. (6)
182
The principle of comity or inter-departmental courtesy demands that the highest
officials of each department be exempt from the compulsory processes of the
other departments. (7) These privileges belong to the Supreme Court as an
institution, not to any justice or judge in his or her individual capacity. Since the
Court is Notice of Resolution - 25 - February 14, 2012 higher than the individual
justices or judges, no sitting or retired justice or judge, not even the Chief Justice,
may claim exception without the consent of the Court. WHEREFORE, on the basis
of the above-cited laws, rules, jurisprudence and principles, the Court resolves the
matter of the House Impeachment Panel’s letters through as follows: A. 1. On the
letters dated January 19 and 25, 2012 sent in behalf of the House Impeachment
Panel, the Court cannot grant the requested examination of the FASAP v. PAL38
rollo as this is still a pending case and the rollo contains privileged and confidential
materials.
The Court, however, can issue certified true copies of the Decisions, Orders and
Resolutions it issued in the case and which have been released to the parties, and
certified copies of the parties’ pleadings and the letters of Atty. Estelito Mendoza.
2. On the letter of January 25, 2012, regarding the examination of the rollo of
Navarro v. Ermita39 (Dinagat case), the Court — although the Dinagat case is
closed and terminated — cannot grant the requested examination as the rollo
contains privileged and confidential information. The Court, however, can issue
certified true copies of the Decisions, Orders and Resolutions it issued in the case
and which have been released to the parties, and certified copies of the parties’
pleadings. 3.
On the letter of January 25, 2012, regarding the examination of the rollo of the
case of Ma. Merceditas N. Gutierrez v. The 38 G.R. No. 178083. 39 G.R. No. 180050.
Notice of Resolution - 26 - February 14, 2012 House of Representatives Committee
on Justice, 40 this is a closed and terminated case. However, the court cannot still
allow examination of the rollo as it contains materials that are still covered by
privilege or are still considered confidential. The Court, however, if requested by
the Prosecution Panel, can issue certified true copies of the Decisions, Orders and
Resolutions that are now matters of public record, as well as certified copies of the
parties’ pleadings. 4.
On the letter of January 19, 2012 in behalf of the Prosecution Panel in the case of
League of Cities v. COMELEC,41 this is still a pending case and the Court cannot

allow the examination of the rollo. The Court, if requested by the Prosecution
Panel, can provide certified true copies of its Decisions, Orders and Resolutions
that have been furnished the parties, and certified copies of the parties’ pleadings.
B. On the subpoena duces tecum et ad testificandum in the FASAP v. PAL case that
is the subject of the subpoena, the case is still pending.
Therefore, all the requested documents cannot be produced as discussed above.
The witness can consequently provide certified true copies to the Impeachment
Court of the Decisions, Orders and Resolutions furnished to the parties, as well as
certified copies of the parties’ pleadings and the letters of Atty. Estelito Mendoza.
The Court cannot as well waive the privileges attendant to the proposed testimony
of Clerk of Court Enriqueta E. Vidal and of the other Court officials and employees
on matters covered by privilege and confidentiality. 40 G.R. No. 193459. 41 G.R.
Nos. 176951, 177499 and 178056.
Notice of Resolution - 27 - February 14, 2012 The documents directed to be
produced by the subpoena duces tecum in the GMA and Arroyo cases (G.R. Nos.
199034 and 199046) are listed in the attached Annex “A” hereof, and are resolved
in accordance with this listing. The witness can only testify on the documents or
records allowed under this listing.
C. The Clerk of Court is hereby DIRECTED:
1. to PHOTOCOPY the non-confidential documents and records requested in the
letters of the House Impeachment Panel, if requested by the Prosecution Panel.
She shall as well provide these certified copies to the Impeachment Court pursuant
to the subpoena duces tecum, but shall exclude therefrom the documents and
records considered as confidential or privileged;
2. to SERVE a copy of this Resolution immediately to the House Impeachment Panel
and to the Impeachment Court; 3. to REPORT to the Court the results of its actions,
under (1) and (2) above, as soon as they are completed and no later than the
deadline imposed by the Impeachment Court.
D. The Court’s Internal Rules and Revision of Rules Committees shall forthwith
meet for the alignment of the above discussed laws, rules and policies with the
Internal Rules of the Supreme Court and the Rules of Court, and to further discuss
183
these rules and policies to the end that the needs of transparency can fully meet,
and be harmonized with, the requirements of confidentiality.”
Given by the Supreme Court of the Philippines, this 14th day of February 2012. JJ.
Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,
Perez, Mendoza and Reyes, concurring; Notice of Resolution - 28 - February 14,
2012 Presiding Officer Carpio and J. Sereno, concurring under Separate Opinions;
Chief Justice Corona, inhibiting; JJ. Velasco, Jr. and PerlasBernabe, on official leave
of absence.” Very truly yours, ENRIQUETA E. VIDAL Clerk of Court
In Re: Production of Court Records and Documents and the Attendance of Court
officials and employees as witnesses under the subpoenas of February 10, 2012
and the various letters for the Impeachment Prosecution Panel dated January 19
and 25, 2012
Facts:
During the impeachment proceedings against Chief Justice Corona, the prosecution
Panel manifested in a COMPLIANCE that it would present about 100 witnesses
which included Justices of the Supreme Court, and Court officials and employees
who will testify on matters internal to the Court and almost a thousand documents
Letters were sent to the SC asking for the examination of records, and the issuance
of certified true copies of the rollos and the Agenda and Minutes of the
Deliberations of various cases decided by the SC for purposes of the -Impeachment
Complaint. Subpoena Ad Testificandum et Duces TecumAnd Subpoena Ad
Testificandum were also issued against Clerks of Court of the SC.
In light of the subpoenas served, the urgent need for a court ruling and based on
the Constitution, the pertinent laws and of the Court’s rules and policies, we shall
now determine how the Court will comply with the subpoenas and the letters of
the Prosecution Impeachment Panel.
Issue during discussion: What is Judicial Privilege?
In fine, there are Philippine laws, rules and jurisprudence prohibiting the
revelation of confidential or “secret” information that causes damage to public
interest even in judicial and other proceedings such as the sui generis

impeachment trial. As far as the Court is concerned, its Members and officials
involved in all proceedings are duty-bound to observe the privileged
communication and confidentiality rules if the integrity of the administration of
justice were to be preserved – i.e., not even Members of the Court, on their own
and without the consent of the Supreme Court, can testify on matters covered by
the prohibitions and exclusions, particularly with respect to matters pending
resolution before the Supreme Court.
Sub-issues: Whether or not Court Records are considered Confidential or
priviliged.
As to Court Deliberations:
In the Judiciary, privileges against disclosure of official records “create a hierarchy
of rights that protect certain confidential relationships over and above the
public’s evidentiary need” or “right to every man’s evidence.” Accordingly,
certain information contained in the records of cases before the Supreme Court
are considered confidential and are exempt from disclosure. To reiterate, the
need arises from the dictates of the integrity of the Court’s decision-making
function which may be affected by the disclosure of information.
The Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of:
(1) the result of the raffle of cases,
(2) the actions taken by the Court on each case included in the agenda of the
Court’s session,
(3) the deliberations of the Members in court sessions on cases and matters
pending before it.
Rule 7, Section 3 of the IRSC10 declares that the results of the raffle of cases shall
only be available to the parties and their counsels, unless the cases involve bar
matters, administrative cases and criminal cases involving the penalty of life
imprisonment, which are treated with strict confidentiality and where the raffle
results are not disclosed even to the parties themselves.
184
Rule 10, Section 2 of the IRSC provides that the actions taken in each case in the
Court’s agenda, which are noted by the Chief Justice or the Division Chairman, are
also to be treated with strict confidentiality. Only after the official release of the
resolution embodying the Court action may that action be made available to the
public. A resolution is considered officially released once the envelope containing
its final copy, addressed to the parties, has been transmitted to the process
server for personal service or to the mailing section of the Judicial Records Office.
Court deliberations are traditionally recognized as privileged
communication. Section 2, Rule 10 of the IRSC provides:
Section 2. Confidentiality of court sessions. – Court sessions are
executive in character, with only the Members of the Court
present. Court deliberations are confidential and shall not be
disclosed to outside parties, except as may be provided herein
or as authorized by the Court. [emphasis ours]
Justice Abad discussed the rationale for the rule in his concurring opinion to the
Court Resolution in Arroyo v. De Lima13 (TRO on Watch List Order case): the rules
on confidentiality will enable the Members of the Court to “freely discuss the
issues without fear of criticism for holding unpopular positions” or fear of
humiliation for one’s comments. The privilege against disclosure of these kinds of
information/communication is known as deliberative process privilege, involving
as it does the deliberative process of reaching a decision. “Written advice from a
variety of individuals is an important element of the government’s decision-
making process and that the interchange of advice could be stifled if courts
forced the government to disclose those recommendations;” the privilege is
intended “to prevent the ‘chilling’ of deliberative communications.”
The privilege is not exclusive to the Judiciary. We have in passing recognized the
claim of this privilege by the two other branches of government in Chavez v. Public
Estates Authority17 (speaking through J. Carpio) when the Court declared that -
[t]he information x x x like internal deliberations of the
Supreme Court and other collegiate courts, or executive
sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by
a co-equal branch of government. A frank exchange of

exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked
to exercise Presidential, Legislative and Judicial power.18
(emphases ours)
Justice Brion noted this fact in his Separate Concurring Opinion in Neri v.
Senate Committee on Accountability of Public Officers and
Investigations:19
Significantly, this type of privilege is not for the Executive to
enjoy alone. All the great branches of government are entitled
to this treatment for their own decision and policy making
conversations and correspondence. It is unthinkable that the
disclosure of internal debates and deliberations of the Supreme
Court or the executive sessions of either Houses of Congress
can be compelled at will by outside parties. [emphasis ours]
Thus, a Senator may invoke legislative privilege when he or she is questioned
outside the Senate about information gathered during an executive session of the
Senate’s legislative inquiry in aid of legislation. In the same manner, a justice of the
court or a judge may invoke judicial privilege in the Senate sitting as an
Impeachment Court, for proceedings in the performance of his or her own judicial
functions. What applies to magistrates applies with equal force to court officials
and employees who are privy to these deliberations. They may likewise claim
exemption when asked about this privileged information.
While Section 2, Rule 10 of the IRSC cited above speaks only of the confidentiality
of court deliberations, it is understood that the rule extends to documents and
other communications which are part of or are related to the deliberative
process. The deliberative process privilege protects from disclosure documents
reflecting advisory opinions, recommendations and deliberations that are
component parts of the process for formulating governmental decisions and
policies. Obviously, the privilege may also be claimed by other court officials and
employees when asked to act on these documents and other communications.
The Code of Conduct for Court Personnel in fact provides that access shall be denied
with respect to information or records relating to drafts of decisions, rulings,
185
orders, or internal memoranda or internal reports. In the 2007 Resolution on
Access to Justice for the Poor Project, the Court excluded the same information and
records from the public by classifying them as confidential:
Article 1. Definition of Terms.
2. Confidential information generally refers to information not
yet made a matter of public record relating to pending cases,
such as notes, drafts, research papers, internal discussion,
internal memoranda, records of internal deliberations, and
similar papers. Even after the decision, resolution, or order is
made public, such information that a justice or judge uses in
preparing a decision, resolution, or order shall remain
confidential. [emphases ours]
To qualify for protection under the deliberative process privilege, the agency must
show that the document is both (1) predecisional and (2) deliberative.
A document is “predecisional” under the deliberative process privilege if it
precedes, in temporal sequence, the decision to which it relates. In other words,
communications are considered predecisional if they were made in the attempt
to reach a final conclusion.
A material is “deliberative,” on the other hand, if it reflects the giveand- take of
the consultative process. The key question in determining whether the material is
deliberative in nature is whether disclosure of the information would discourage
candid discussion within the agency. If the disclosure of the information would
expose the government’s decision making process in a way that discourages candid
discussion among the decision-makers (thereby undermining the courts’ ability to
perform their functions), the information is deemed privileged.
Court records which are “predecisional” and “deliberative” in nature are thus
protected and cannot be the subject of a subpoena if judicial privilege is to be
preserved. The privilege in general insulates the Judiciary from an improper
intrusion into the functions of the judicial branch and shields justices, judges, and
court officials and employees from public scrutiny or the pressure of public opinion
that would impair a judge’s ability to render impartial decisions. The deliberative
 186

process can be impaired by undue exposure of the decision-making process to

public scrutiny before or even after the decision is made, as discussed below.

Additionally, two other grounds may be cited for denying access to court records,
as well as preventing members of the bench, from being subjected to compulsory
process:

(1) the disqualification by reason of privileged communication and

(2) the pendency of an action or matter.

The prohibition against disclosure of confidential information is required to be

observed by members of the Court under the New Code of Judicial Conduct for the
Philippine Judiciary. Section 9, Canon 4 (Propriety) states:

Section 9. Confidential information acquired by judges in their

judicial capacity shall not be used or disclosed for any other
purpose related to their judicial duties. [emphasis ours]

This rule of judicial ethics complements the rule of evidence that disqualifies public
officials from testifying on information they acquire in confidence in the course of
their duties:

Rules of Court, Rule 130, Section 24. Disqualification by reason

of privileged communication. – The following persons cannot
testify as to matters learned in confidence in the following
cases:

FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the reed once, then twice.
All of a sudden, the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female. Amihan named the
man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law
recognize the changes made by a physician using scalpel, drugs and counseling with
regard to a person’s sex? May a person successfully petition for a change of name
and sex appearing in the birth certificate to reflect the result of a sex reassignment
surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition
for the change of his first name and sex in his birth certificate in the Regional Trial
Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207,
impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the
spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live
birth (birth certificate). His sex was registered as "male."
187
He further alleged that he is a male transsexual, that is, "anatomically male but
feels, thinks and acts as a female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a man’s body, he consulted several
doctors in the United States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he underwent sex reassignment
surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino
Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued
a medical certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be married.
He then sought to have his name in his birth certificate changed from "Rommel
Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People’s Journal
Tonight, a newspaper of general circulation in Metro Manila, for three consecutive
weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG)
and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No
opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr.
and his American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its
relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his

sexual [re-assignment], petitioner, who has always felt, thought and
acted like a woman, now possesses the physique of a female. Petitioner’s
misfortune to be trapped in a man’s body is not his own doing and should
not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness
on the part of the petitioner and her [fiancé] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in
the Certificate of Birth of [p]etitioner, specifically for petitioner’s first
name from "Rommel Jacinto" to MELY and petitioner’s gender from
"Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a
petition for certiorari in the Court of Appeals.6 It alleged that there is no law
allowing the change of entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the
Republic. It ruled that the trial court’s decision lacked legal basis. There is no law
allowing the change of either name or sex in the certificate of birth on the ground
of sex reassignment through surgery. Thus, the Court of Appeals granted the
Republic’s petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it
was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108
of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment
188
Petitioner invoked his sex reassignment as the ground for his petition for change of
name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.
(emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he
became entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a right.12 Petitions
for change of name are controlled by statutes.13 In this connection, Article 376 of
the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. – No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority
to entertain petitions for change of first name to the city or municipal civil registrar
or consul general concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to
exclude the change of first name from the coverage of Rules 103 (Change of Name)
and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of
Court, until and unless an administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the corresponding

venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be
allowed:
SECTION 4. Grounds for Change of First Name or Nickname. – The
petition for change of first name or nickname may be allowed in any of
the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously
used by the petitioner and he has been publicly known by that first name
or nickname in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he
thought he transformed himself into through surgery. However, a change of name
does not alter one’s legal capacity or civil status.18 RA 9048 does not sanction a
change of first name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioner’s first name for his declared purpose may only
create grave complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change. 19 In addition, he
must show that he will be prejudiced by the use of his true and official name.20 In
this case, he failed to show, or even allege, any prejudice that he might suffer as a
result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of
petitioner’s first name was not within that court’s primary jurisdiction as the
petition should have been filed with the local civil registrar concerned, assuming it
could be legally done. It was an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It was also filed in the wrong
venue as the proper venue was in the Office of the Civil Registrar of Manila where
his birth certificate is kept. More importantly, it had no merit since the use of his
189
true and official name does not prejudice him at all. For all these reasons, the Court
of Appeals correctly dismissed petitioner’s petition in so far as the change of his
first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the
Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate is a legal issue
and the court must look to the statutes.21 In this connection, Article 412 of the Civil
Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048
in so far as clerical or typographical errors are involved. The correction or change of
such matters can now be made through administrative proceedings and without
the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule
108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only
to substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. – As used in this Act, the following terms
shall mean:
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register that
is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes
or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a
mere clerical or typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule
108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil
Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning;
(7) legitimations; (8) adoptions; (9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth.25 However, no reasonable interpretation
of the provision can justify the conclusion that it covers the correction on the
ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from"
while to change means "to replace something with something else of the same kind
or with something that serves as a substitute."26 The birth certificate of petitioner
contained no error. All entries therein, including those corresponding to his first
name and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate children and
naturalization), events (such as births, marriages, naturalization and deaths)
and judicial decrees (such as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal consequences that
touch upon the legal capacity, status and nationality of a person. Their effects are
expressly sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
190
"Status" refers to the circumstances affecting the legal situation (that is, the sum
total of capacities and incapacities) of a person in view of his age, nationality and
his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable
at his own will, such as his being legitimate or illegitimate, or his being
married or not. The comprehensive term status… include such matters as
the beginning and end of legal personality, capacity to have rights in
general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes
even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations. It is a part of a
person’s legal capacity and civil status. In this connection, Article 413 of the Civil
Code provides:
ART. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.
But there is no such special law in the Philippines governing sex reassignment and
its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for
the registration of a birth in the civil register. Such declaration shall be
exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of the newborn
child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of
infant; (c) names, citizenship and religion of parents or, in case the father
is not known, of the mother alone; (d) civil status of parents; (e) place
where the infant was born; and (f) such other data as may be required in
the regulations to be issued.

Under the Civil Register Law, a birth certificate is a historical record of the facts as
they existed at the time of birth.29Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or midwife) by examining
the genitals of the infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time of his or her
birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their common and
ordinary meaning in the absence of a contrary legislative intent. The words "sex,"
"male" and "female" as used in the Civil Register Law and laws concerning the civil
registry (and even all other laws) should therefore be understood in their common
and ordinary usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of structure and function
that distinguish a male from a female"32 or "the distinction between male and
female."33Female is "the sex that produces ova or bears young"34 and male is "the
sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words
"male" and "female" in everyday understanding do not include persons who have
undergone sex reassignment. Furthermore, "words that are employed in a statute
which had at the time a well-known meaning are presumed to have been used in
that sense unless the context compels to the contrary."36 Since the statutory
language of the Civil Register Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term "sex" as used then is something
alterable through surgery or something that allows a post-operative male-to-
female transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and
appearance through the intervention of modern surgery, no law authorizes the
change of entry as to sex in the civil registry for that reason. Thus, there is no legal
basis for his petition for the correction or change of the entries in his birth
certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed
on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the
principles of justice and equity. It believed that allowing the petition would cause
no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and
public policy consequences. First, even the trial court itself found that the petition
was but petitioner’s first step towards his eventual marriage to his male fiancé.
191
However, marriage, one of the most sacred social institutions, is a special contract
of permanent union between a man and a woman.37 One of its essential requisites
is the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially reconfigure
and greatly alter the laws on marriage and family relations. It will allow the union
of a man with another man who has undergone sex reassignment (a male-to-
female post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on employment of
women,39 certain felonies under the Revised Penal Code40 and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court,41 among
others. These laws underscore the public policy in relation to women which could
be substantially affected if petitioner’s petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or insufficiency of
the law." However, it is not a license for courts to engage in judicial legislation. The
duty of the courts is to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to
determine what guidelines should govern the recognition of the effects of sex
reassignment. The need for legislative guidelines becomes particularly important in
this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and
for correction or change of entries in the civil registry, where they may be filed,
what grounds may be invoked, what proof must be presented and what procedures
shall be observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and sex to conform
with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a
person may be recognized as having successfully changed his sex. However, this
Court has no authority to fashion a law on that matter, or on anything else. The
Court cannot enact a law where no law exists. It can only apply or interpret the
written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness,
contentment and [the] realization of their dreams." No argument about that. The
Court recognizes that there are people whose preferences and orientation do not
fit neatly into the commonly recognized parameters of social convention and that,

at least for them, life is indeed an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed solely by the legislature, not by
the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
G.R. No. 174689 October 22 2007 [Change of name or sex]
FACTS:
Rommel Jacinto Dantes Silverio having undergone a sex reassignment surgery,
sought to have his first name changed from Rommel to Mely, and his sex from male
to female. Trial court granted his petition. CA, however, upon appeal filed by the
Republic of the Philippines thru the OSG, reversed the trial court decision, holding
that there is no law allowing the change of entries of either name or sex in the
birth certificate by reason of sex alteration.
ISSUE: Whether or not Rommel's first name and sex be changed on the ground of
sex reassignment.
RULING:
No. There is no law authorizes the change of entry as of sex and first name through
the intervention of sex reassignment surgery. Article 376 of the Civil Code as
amended by RA 9048 (Clerical Error Law), together with Article 412 of the same
Code, change of name or sex in the birth certificate is allowed by the courts so long
as clerical or typographical errors are involved.
Changes sought by Silverio will have serious legal and public policy consequences.
To grant this petition filed by Silverio will greatly alter the laws on marriage and
family relations. Second, there will be major changes in statutes that underscore
the public policy in relation to women.
Civil Law – Equity – Change of Name – Change of Sex – Marriage
Rommel Jacinto Dantes Silverio is a male transsexual. He’s a biological male who
feels trapped in a male body. Being that, he sought gender re-assignment in
192
Bangkok, Thailand. The procedure was successful – he (she) now has a female
body. Thereafter, in 2002, he filed a petition for the change of his first name (from
Rommel to Mely) and his sex (male to female) in his birth certificate. He filed the
petition before the Manila RTC. He wanted to make these changes, among others,
so that he can marry his American fiancé.
The RTC granted Silverio’s petition. The RTC ruled that it should be granted based
on equity; that Silverio’s misfortune to be trapped in a man’s body is not his own
doing and should not be in any way taken against him; that there was no
opposition to his petition (even the OSG did not make any basis for opposition at
this point); that no harm, injury or prejudice will be caused to anybody or the
community in granting the petition. On the contrary, granting the petition would
bring the much-awaited happiness on the part of Silverio and [her] fiancé and the
realization of their dreams.
Later, a petition for certiorari was filed by the OSG before the CA. The CA reversed
the decision of the RTC.
ISSUE: Whether or not the entries pertaining to sex and first name in the birth
certificate may be changed on the ground of gender re-assignment.
HELD: No. The Supreme Court ruled that the change of such entries finds no
support in existing legislation.
Issue on the change of first name
In 2001, Republic Act 9048 (AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL
REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR
TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR
NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER) was
passed. This law provides that it should be the local civil registrar that has
jurisdiction in petitions for the change of first names and not the regular courts.
Hence, the petition of Silverio insofar as his first name is concerned is procedurally
infirm. Even assuming that the petition filed properly, it cannot be granted still
because the ground upon which it is based(gender re-assignment) is not one of
those provided for by the law. Under the law, a change of name may only be
grounded on the following:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by
the petitioner and he has been publicly known by that first name or nickname in
the community; or
(3) The change will avoid confusion.
 193

Unfortunately, Silverio did not allege any of the above, he merely alleged gender
re-assignment as the basis.
Issue on the change of sex
This entry cannot be changed either via a petition before the regular courts or a
petition for the local civil registry. Not with the courts because there is no law to
support it. And not with the civil registry because there is no clerical error involved.
Silverio was born a male hence it was just but right that the entry written in his
birth certificate is that he is a male. The sex of a person is determined at birth,
visually done by the birth attendant (the physician or midwife) by examining the
genitals of the infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time of his or her
birth, if not attended by error, is immutable.
But what about equity, as ruled by the RTC?
No. According to the SC, this amounts to judicial legislation. To grant the changes
sought by Silverio will substantially reconfigure and greatly alter the laws on
marriage and family relations. It will allow the union of a man with another man
who has undergone sex reassignment (a male-to-female post-operative
transsexual). Second, there are various laws which apply particularly to women
such as the provisions of the Labor Code on employment of women, certain
felonies under the Revised Penal Code and the presumption of survivorship in case
of calamities under Rule 131 of the Rules of Court, among others. These laws
underscore the public policy in relation to women which could be substantially
affected if Silverio’s petition were to be granted.
But the SC emphasized: “If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and sex to conform
with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.”
 194

EN BANC
compensation due the contractor for the terminal complex it built. We decide the
REPUBLIC OF THE PHILIPPINES, G.R. No. 166429
Represented by Executive Secretary Eduardo R. Ermita, the DEPARTMENT case on the basis of fairness, the same norm that pervades both the Courts 2004
OF TRANSPORTATION AND Present: COMMUNICATIONS (DOTC), and the MANILA
INTERNATIONAL AIRPORT DAVIDE, JR., C.J., AUTHORITY (MIAA), PUNO, Resolution in the first case and the latest expropriation law.
Petitioners,
-versus-
HON. HENRICK F. GINGOYON, TINGA, The present controversy has its roots with the promulgation of the Courts decision
In his capacity as Presiding CHICO-NAZARIO, and
in Agan v. PIATCO,[2] promulgated in 2003 (2003 Decision). This decision nullified
Judge of the Regional Trial Court, GARCIA, JJ.
Branch 117, Pasay City and
the Concession Agreement for the Build-Operate-and-Transfer Arrangement of the
PHILIPPINE INTERNATIONAL AIR
TERMINALS CO., INC., Ninoy Aquino International Airport Passenger Terminal III entered into between the
Respondents.
Philippine Government (Government) and the Philippine International Air
December 19, 2005
Terminals Co., Inc. (PIATCO), as well as the amendments and supplements thereto.
x---------------------------------------------------------------------- x
The agreement had authorized PIATCO to build a new international airport
DECISION
terminal (NAIA 3), as well as a franchise to operate and maintain the said terminal
TINGA, J.:
during the concession period of 25 years. The contracts were nullified, among
The Ninoy Aquino International Airport Passenger Terminal III (NAIA 3) was
others, that Paircargo Consortium, predecessor of PIATCO, did not possess the
conceived, designed and constructed to serve as the countrys show window to the
requisite financial capacity when it was awarded the NAIA 3 contract and that the
world. Regrettably, it has spawned controversies. Regrettably too, despite the
agreement was contrary to public policy.[3]
apparent completion of the terminal complex way back it has not yet been

operated. This has caused immeasurable economic damage to the country, not to
At the time of the promulgation of the 2003 Decision, the NAIA 3 facilities had
mention its deplorable discredit in the international community.
already been built by PIATCO and were nearing completion.[4]However,

the ponencia was silent as to the legal status of the NAIA 3 facilities following the
In the first case that reached this Court, Agan v. PIATCO,[1] the contracts which the
nullification of the contracts, as well as whatever rights of PIATCO for
Government had with the contractor were voided for being contrary to law and

public policy. The second case now before the Court involves the matter of just
 195

reimbursement for its expenses in the construction of the facilities. Still, in his conducted several rounds of negotiation regarding the NAIA 3 facilities.[8] It also

Separate Opinion, Justice Panganiban, joined by Justice Callejo, declared as follows: appears that arbitral proceedings were commenced before the International

Chamber of Commerce International Court of Arbitration and the International

Should government pay at all for reasonable expenses incurred in
the construction of the Terminal? Indeed it should, otherwise it will Centre for the Settlement of Investment Disputes,[9] although the Government has
be unjustly enriching itself at the expense of Piatco and, in
particular, its funders, contractors and investors both local and raised jurisdictional questions before those two bodies.[10]
foreign. After all, there is no question that the State needs and will
make use of Terminal III, it being part and parcel of the critical
infrastructure and transportation-related programs of Then, on 21 December 2004, the Government [11] filed a Complaint for
government.[5]
expropriation with the Pasay City Regional Trial Court (RTC), together with
PIATCO and several respondents-intervenors filed their respective motions for the
an Application for Special Raffle seeking the immediate holding of a special raffle.
reconsideration of the 2003 Decision. These motions were denied by the Court in
The Government sought upon the filing of the complaint the issuance of a writ of
its Resolution dated 21 January 2004 (2004 Resolution).[6] However, the Court this
possession authorizing it to take immediate possession and control over the NAIA 3
time squarely addressed the issue of the rights of PIATCO to refund, compensation
facilities.
or reimbursement for its expenses in the construction of the NAIA 3 facilities. The

holding of the Court on this crucial point follows: The Government also declared that it had deposited the amount

of P3,002,125,000.00[12] (3 Billion)[13] in Cash with the Land Bank of the Philippines,

This Court, however, is not unmindful of the reality that the
structures comprising the NAIA IPT III facility are almost representing the NAIA 3 terminals assessed value for taxation purposes.[14]
complete and that funds have been spent by PIATCO in their
construction. For the government to take over the said facility, it
has to compensate respondent PIATCO as builder of the said
The case[15] was raffled to Branch 117 of the Pasay City RTC, presided by
structures. The compensation must be just and in accordance
with law and equity for the government can not unjustly enrich respondent judge Hon. Henrick F. Gingoyon (Hon. Gingoyon). On the same day that
itself at the expense of PIATCO and its investors.[7]
the Complaint was filed, the RTC issued an Order[16] directing the issuance of a writ
After the promulgation of the rulings in Agan, the NAIA 3 facilities have remained
of possession to the Government, authorizing it to take or enter upon the
in the possession of PIATCO, despite the avowed intent of the Government to put
possession of the NAIA 3 facilities. Citing the case of City of Manila v.
the airport terminal into immediate operation. The Government and PIATCO
Serrano,[17] the RTC noted that it had the ministerial duty to issue the writ of
 196

possession upon the filing of a complaint for expropriation sufficient in form and to be entitled to a writ of possession, whereas in Rule 67, the Government is

substance, and upon deposit made by the government of the amount equivalent to required only to make an initial deposit with an authorized government depositary.

the assessed value of the property subject to expropriation. The RTC found these Moreover, Rule 67 prescribes that the initial deposit be equivalent to the assessed

requisites present, particularly noting that [t]he case record shows that [the value of the property for purposes of taxation, unlike Rep. Act No. 8974 which

Government has] deposited the assessed value of the [NAIA 3 facilities] in the Land provides, as the relevant standard for initial compensation, the market value of the

Bank of the Philippines, an authorized depositary, as shown by the certification property as stated in the tax declaration or the current relevant zonal valuation of

attached to their complaint. Also on the same day, the RTC issued a Writ of the Bureau of Internal Revenue (BIR), whichever is higher, and the value of the

Possession. According to PIATCO, the Government was able to take possession over improvements and/or structures using the replacement cost method.

the NAIA 3 facilities immediately after the Writ of Possession was issued.[18] Accordingly, on the basis of Sections 4 and 7 of Rep. Act No. 8974 and Section 10 of

the Implementing Rules, the RTC made key qualifications to its earlier

However, on 4 January 2005, the RTC issued another Order designed to issuances. First, it directed the Land Bank of the Philippines, Baclaran Branch (LBP-

supplement its 21 December 2004 Order and the Writ of Possession. In the 4 Baclaran), to immediately release the amount of US$62,343,175.77 to PIATCO, an

January 2005 Order, now assailed in the present petition, the RTC noted that its amount which the RTC characterized as that which the Government specifically

earlier issuance of its writ of possession was pursuant to Section 2, Rule 67 of the made available for the purpose of this expropriation; and such amount to be

1997 Rules of Civil Procedure. However, it was observed that Republic Act No. 8974 deducted from the amount of just compensation due PIATCO as eventually

(Rep. Act No. 8974), otherwise known as An Act to Facilitate the Acquisition of determined by the RTC. Second, the Government was directed to submit to the RTC

Right-of-Way, Site or Location for National Government Infrastructure Projects and a Certificate of Availability of Funds signed by authorized officials to cover the

For Other Purposes and its Implementing Rules and Regulations (Implementing payment of just compensation. Third, the Government was directed to maintain,

Rules) had amended Rule 67 in many respects. preserve and safeguard the NAIA 3 facilities or perform such as acts or activities in

There are at least two crucial differences between the respective procedures under preparation for their direct operation of the airport terminal, pending

Rep. Act No. 8974 and Rule 67. Under the statute, the Government is required to expropriation proceedings and full payment of just compensation. However, the

make immediate payment to the property owner upon the filing of the complaint

Government was prohibited from performing acts of ownership like awarding
concessions or leasing any part of [NAIA 3] to other parties.[19]
The very next day after the issuance of the assailed 4 January 2005 Order, the
Government filed an Urgent Motion for Reconsideration, which was set for hearing
on 10 January 2005. On 7 January 2005, the RTC issued another Order, the second
now assailed before this Court, which appointed three (3) Commissioners to
ascertain the amount of just compensation for the NAIA 3 Complex. That same day,
the Government filed a Motion for Inhibition of Hon. Gingoyon.
The RTC heard the Urgent Motion for Reconsideration and Motion for Inhibition on
10 January 2005. On the same day, it denied these motions in an Omnibus
Order dated 10 January 2005. This is the third Order now assailed before this Court.
Nonetheless, while the Omnibus Order affirmed the earlier dispositions in the 4
January 2005 Order, it excepted from affirmance the superfluous part of
the Order prohibiting the plaintiffs from awarding concessions or leasing any part
of [NAIA 3] to other parties.[20]
Thus, the present Petition for Certiorari and Prohibition under Rule 65 was filed on
13 January 2005. The petition prayed for the nullification of the RTC orders dated 4
January 2005, 7 January 2005, and 10 January 2005, and for the inhibition of Hon.
Gingoyon from taking further action on the expropriation case. A concurrent prayer
197
for the issuance of a temporary restraining order and preliminary injunction was
granted by this Court in a Resolution dated 14 January 2005.[21]
The Government, in imputing grave abuse of discretion to the acts of Hon.
Gingoyon, raises five general arguments, to wit:
(i) that Rule 67, not Rep. Act No. 8974, governs the present expropriation
proceedings;
(ii) that Hon. Gingoyon erred when he ordered the immediate release of the
amount of US$62.3 Million to PIATCO considering that the assessed value as
alleged in the complaint was only P3 Billion;
(iii) that the RTC could not have prohibited the Government from enjoining the
performance of acts of ownership;
(iv) that the appointment of the three commissioners was erroneous; and
(v) that Hon. Gingoyon should be compelled to inhibit himself from the
expropriation case.[22]
Before we delve into the merits of the issues raised by the Government, it is
essential to consider the crucial holding of the Court in its 2004 Resolution in Agan,
which we repeat below:
This Court, however, is not unmindful of the reality that the
structures comprising the NAIA IPT III facility are almost complete
and that funds have been spent by PIATCO in their construction. For
the government to take over the said facility, it has to compensate
respondent PIATCO as builder of the said structures. The
compensation must be just and in accordance with law and equity
for the government can not unjustly enrich itself at the expense of
PIATCO and its investors.[23]
 198

controversy. Of course, questions such as what is the standard of just compensation

This pronouncement contains the fundamental premises which permeate this
and which particular laws and equitable principles are applicable, remain in dispute
decision of the Court. Indeed, Agan, final and executory as it is, stands as governing
and shall be resolved forthwith.
law in this case, and any disposition of the present petition must conform to the
The Government has chosen to resort to expropriation, a remedy available under
conditions laid down by the Court in its 2004 Resolution.
the law, which has the added benefit of an integrated process for the determination

of just compensation and the payment thereof to PIATCO. We appreciate that the
The 2004 Resolution Which Is Law of This Case Generally Permits Expropriation
case at bar is a highly unusual case, whereby the Government seeks to expropriate
The pronouncement in the 2004 Resolution is especially significant to this case in
a building complex constructed on land which the State already owns.[25] There is an
two aspects, namely: (i) that PIATCO must receive payment of just compensation
inherent illogic in the resort to eminent domain on property already owned by the
determined in accordance with law and equity; and (ii) that the government is
State. At first blush, since the State already owns the property on which NAIA 3
barred from taking over NAIA 3 until such just compensation is paid. The parties
stands, the proper remedy should be akin to an action for ejectment.
cannot be allowed to evade the directives laid down by this Court through any

mode of judicial action, such as the complaint for eminent domain. However, the reason for the resort by the Government to expropriation

proceedings is understandable in this case. The 2004 Resolution, in requiring the

It cannot be denied though that the Court in the 2004 Resolution prescribed payment of just compensation prior to the takeover by the Government of

mandatory guidelines which the Government must observe before it could acquire
NAIA 3, effectively precluded it from acquiring possession or ownership of the NAIA
the NAIA 3 facilities. Thus, the actions of respondent judge under review, as well as
3 through the unilateral exercise of its rights as the owner of the ground on which
the arguments of the parties must, to merit affirmation, pass the threshold test of
the facilities stood. Thus, as things stood after the 2004 Resolution, the right of the
whether such propositions are in accord with the 2004 Resolution.
Government to take over the NAIA 3 terminal was preconditioned by lawful order

on the payment of just compensation to PIATCO as builder of the structures.

The Government does not contest the efficacy of this pronouncement in the

2004 Resolution,[24] thus its application to the case at bar is not a matter of
 199

The determination of just compensation could very well be agreed upon by the as the speediest means by which such goals may be accomplished. Not only does it

parties without judicial intervention, and it appears that steps towards that enable immediate possession after satisfaction of the requisites under the law, it

direction had been engaged in. Still, ultimately, the Government resorted to its also has a built-in procedure through which just compensation may be ascertained.

inherent power of eminent domain through expropriation proceedings. Is eminent Thus, there should be no question as to the propriety of eminent domain

domain appropriate in the first place, with due regard not only to the law on proceedings in this case.

expropriation but also to the Courts 2004 Resolution in Agan? Still, in applying the laws and rules on expropriation in the case at bar, we are

impelled to apply or construe these rules in accordance with the Courts

The right of eminent domain extends to personal and real property, and the NAIA 3 prescriptions in the 2004 Resolution to achieve the end effect that the Government

structures, adhered as they are to the soil, are considered as real property.[26] The may validly take over the NAIA 3 facilities. Insofar as this case is concerned, the

public purpose for the expropriation is also beyond dispute. It should also be noted 2004 Resolution is effective not only as a legal precedent, but as the source of rights

that Section 1 of Rule 67 (on Expropriation) recognizes the possibility that the and prescriptions that must be guaranteed, if not enforced, in the resolution of this

property sought to be expropriated may be titled in the name of the petition. Otherwise, the integrity and efficacy of the rulings of this Court will be

severely diminished.

Republic of the Philippines, although occupied by private individuals, and in such

case an averment to that effect should be made in the complaint. The instant It is from these premises that we resolve the first question, whether Rule 67 of the

expropriation complaint did aver that the NAIA 3 complex stands on a parcel of land Rules of Court or Rep. Act No. 8974 governs the expropriation proceedings in this

owned by the Bases Conversion Development Authority, another agency of [the case.

Republic of the Philippines].[27]

Application of Rule 67 Violates the 2004 Agan Resolution

Admittedly, eminent domain is not the sole judicial recourse by which the The Government insists that Rule 67 of the Rules of Court governs the expropriation

Government may have acquired the NAIA 3 facilities while satisfying the requisites proceedings in this case to the exclusion of all other laws. On the other hand,

in the 2004 Resolution. Eminent domain though may be the most effective, as well PIATCO claims that it is Rep. Act No. 8974 which does apply. Earlier, we had

adverted to the basic differences between the statute and the procedural rule.
Further elaboration is in order.
Rule 67 outlines the procedure under which eminent domain may be exercised by
the Government. Yet by no means does it serve at present as the solitary guideline
through which the State may expropriate private property. For example, Section 19
of the Local Government Code governs as to the exercise by local government units
of the power of eminent domain through an enabling ordinance. And then there is
Rep. Act No. 8974, which covers expropriation proceedings intended for national
government infrastructure projects.
Rep. Act No. 8974, which provides for a procedure eminently more favorable to the
property owner than Rule 67, inescapably applies in instances when the national
government expropriates property for national government infrastructure
projects.[28] Thus, if expropriation is engaged in by the national government for
purposes other than national infrastructure projects, the assessed value standard
and the deposit mode prescribed in Rule 67 continues to apply.
Under both Rule 67 and Rep. Act No. 8974, the Government commences
expropriation proceedings through the filing of a complaint. Unlike in the case of
local governments which necessitate an authorizing ordinance before expropriation
may be accomplished, there is no need under Rule 67 or Rep. Act No. 8974 for
200
legislative authorization before the Government may proceed with a particular
exercise of eminent domain. The most crucial difference between Rule 67 and Rep.
Act No. 8974 concerns the particular essential step the Government has to
undertake to be entitled to a writ of possession.
The first paragraph of Section 2 of Rule 67 provides:
SEC. 2. Entry of plaintiff upon depositing value with authorized
government depository. Upon the filing of the complaint or at any
time thereafter and after due notice to the defendant, the plaintiff
shall have the right to take or enter upon the possession of the real
property involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the
property for purposes of taxation to be held by such bank subject
to the orders of the court. Such deposit shall be in money, unless in
lieu thereof the court authorizes the deposit of a certificate of
deposit of a government bank of the Republic of
the Philippines payable on demand to the authorized government
depositary.
In contrast, Section 4 of Rep. Act No. 8974 relevantly states:
SEC. 4. Guidelines for Expropriation Proceedings. Whenever it is necessary to
acquire real property for the right-of-way, site or location for any
national government infrastructure project through expropriation,
the appropriate proceedings before the proper court under the
following guidelines:
a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the
owner of the property the amount equivalent to the sum of (1) one
hundred percent (100%) of the value of the property based on the
current relevant zonal valuation of the Bureau of Internal Revenue
(BIR); and (2) the value of the improvements and/or structures as
determined under Section 7 hereof;

c) In case the completion of a government infrastructure project is of utmost
urgency and importance, and there is no existing valuation of the area
concerned, the implementing agency shall immediately pay the owner of the
property its proffered value taking into consideration the standards
prescribed in Section 5 hereof.
Upon completion with the guidelines abovementioned, the court
shall immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the
project.
Before the court can issue a Writ of Possession, the implementing
agency shall present to the court a certificate of availability of funds
from the proper official concerned.
As can be gleaned from the above-quoted texts, Rule 67 merely requires the
Government to deposit with an authorized government depositary the assessed
value of the property for expropriation for it to be entitled to a writ of possession.
On the other hand, Rep. Act No. 8974 requires that the Government make a direct
payment to the property owner before the writ may issue. Moreover, such payment
is based on the zonal valuation of the BIR in the case of land, the value of the
improvements or structures under the replacement cost method, [29] or if no such
valuation is available and in cases of utmost urgency, the proffered value of the
property to be seized.
It is quite apparent why the Government would prefer to apply Rule 67 in lieu of
Rep. Act No. 8974. Under Rule 67, it would not be obliged to immediately pay any
amount to PIATCO before it can obtain the writ of possession since all it need do is
deposit the amount equivalent to the assessed value with an authorized
201
government depositary. Hence, it devotes considerable effort to point out that Rep.
Act No. 8974 does not apply in this case, notwithstanding the undeniable reality
that NAIA 3 is a national government project. Yet, these efforts fail, especially
considering the controlling effect of the 2004 Resolution in Agan on the
adjudication of this case.
It is the finding of this Court that the staging of expropriation proceedings in this
case with the exclusive use of Rule 67 would allow for the Government to take over
the NAIA 3 facilities in a fashion that directly rebukes our 2004 Resolution in Agan.
This Court cannot sanction deviation from its own final and executory orders.
Section 2 of Rule 67 provides that the State shall have the right to take or enter
upon the possession of the real property involved if [the plaintiff] deposits with the
authorized government depositary an amount equivalent to the assessed value of
the property for purposes of taxation to be held by such bank subject to the orders
of the court.[30] It is thus apparent that under the provision, all the Government
need do to obtain a writ of possession is to deposit the amount equivalent to the
assessed value with an authorized government depositary.
Would the deposit under Section 2 of Rule 67 satisfy the requirement laid down in
the 2004 Resolution that [f]or the government to take over the said facility, it has to
compensate respondent PIATCO as builder of the said structures? Evidently not.

If Section 2 of Rule 67 were to apply, PIATCO would be enjoined from receiving a
single centavo as just compensation before the Government takes over the NAIA 3
facility by virtue of a writ of possession. Such an injunction squarely contradicts the
letter and intent of the 2004 Resolution. Hence, the position of the Government
sanctions its own disregard or violation the prescription laid down by this Court that
there must first be just compensation paid to PIATCO before the Government may
take over the NAIA 3 facilities.
Thus, at the very least, Rule 67 cannot apply in this case without violating the 2004
Resolution. Even assuming that Rep. Act No. 8974 does not govern in this case, it
does not necessarily follow that Rule 67 should then apply. After all, adherence to
the letter of Section 2, Rule 67 would in turn violate the Courts requirement in the
2004 Resolution that there must first be payment of just compensation to PIATCO
before the Government may take over the property.
It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under
Rule 67 with the scheme of immediate payment in cases involving national
government infrastructure projects. The following portion of the Senate
deliberations, cited by PIATCO in its Memorandum, is worth quoting to cogitate on
the purpose behind the plain meaning of the law:
202
THE CHAIRMAN (SEN. CAYETANO). x x x Because the Senate
believes that, you know, we have to pay the landowners
immediately not by treasury bills but by cash.
Since we are depriving them, you know, upon payment, no, of
possession, we might as well pay them as much, no, hindi lang 50
percent.
THE CHAIRMAN (REP. VERGARA). Accepted.
THE CHAIRMAN (SEN. CAYETANO). Oo. Because this is really in favor
of the landowners, e.
THE CHAIRMAN (REP. VERGARA). Thats why we need to really
secure the availability of funds.
THE CHAIRMAN (SEN. CAYETANO). No, no. Its the same. It says
here: iyong first paragraph, diba? Iyong zonal talagang
magbabayad muna. In other words, you know, there must be a
payment kaagad. (TSN, Bicameral Conference on the Disagreeing
Provisions of House Bill 1422 and Senate Bill 2117, August 29, 2000,
pp. 14-20)
THE CHAIRMAN (SEN. CAYETANO). Okay, okay, no. Unang-una, it is
not deposit, no. Its payment.
REP. BATERINA. Its payment, ho, payment. (Id., p. 63)[31]
It likewise bears noting that the appropriate standard of just compensation is a
substantive matter. It is well within the province of the legislature to fix the
standard, which it did through the enactment of Rep. Act No. 8974. Specifically, this
prescribes the new standards in determining the amount of just compensation in
expropriation cases relating to national government infrastructure projects, as well
as the manner of payment thereof. At the same time, Section 14 of the
Implementing Rules recognizes the continued applicability of Rule 67 on procedural
aspects when it provides all matters regarding defenses and objections to the
 203

As acknowledged in the 2003 Decision, the development of NAIA 3 was

complaint, issues on uncertain ownership and conflicting claims, effects of appeal
on the rights of the parties, and such other incidents affecting the complaint shall
be resolved under the provisions on expropriation of Rule 67 of the Rules of
Court.[32]
Given that the 2004 Resolution militates against the continued use of the norm
made pursuant to a build-operate-and-transfer arrangement pursuant to
Republic Act No. 6957, as amended,[33] which pertains to infrastructure or
development projects normally financed by the public sector but which are
now wholly or partly implemented by the private sector.[34] Under the build-
operate-and-transfer scheme, it is the project proponent which undertakes
the construction, including the financing, of a given infrastructure
facility.[35] In Tatad v. Garcia,[36] the Court acknowledged that the operator
of the EDSA Light Rail Transit project under a BOT scheme was the owner of
the facilities such as the rail tracks, rolling stocks like the coaches, rail
stations, terminals and the power plant.[37]

under Section 2, Rule 67, is it then possible to apply Rep. Act No. 8974? We find that
There can be no doubt that PIATCO has ownership rights over the facilities which it
it is, and moreover, its application in this case complements rather than
had financed and constructed. The 2004 Resolution squarely recognized that right
contravenes the prescriptions laid down in the 2004 Resolution.
when it mandated the payment of just compensation to PIATCO prior to the
Rep. Act No. 8974 Fits to the Situation at Bar and Complements the 2004 Agan
takeover by the Government of NAIA 3. The fact that the Government resorted to
Resolution
eminent domain proceedings in the first place is a concession on its part of PIATCOs
Rep. Act No. 8974 is entitled An Act To Facilitate The Acquisition Of Right-Of-Way,
ownership. Indeed, if no such right is recognized, then there should be no
Site Or Location For National Government Infrastructure Projects And For Other
impediment for the Government to seize control of NAIA 3 through ordinary
Purposes. Obviously, the law is intended to cover expropriation proceedings
ejectment proceedings.
intended for national government infrastructure projects. Section 2 of Rep. Act No.
Since the rights of PIATCO over the NAIA 3 facilities are established, the nature of
8974 explains what are considered as national government projects.
these facilities should now be determined. Under Section 415(1) of the Civil Code,
Sec. 2. National Government Projects. The term national
government projects shall refer to all national government these facilities are ineluctably immovable or real property, as they constitute
infrastructure, engineering works and service contracts, including
projects undertaken by government-owned and controlled buildings, roads and constructions of all kinds adhered to the soil.[38] Certainly, the
corporations, all projects covered by Republic Act No. 6957, as
amended by Republic Act No. 7718, otherwise known as the Build- NAIA 3 facilities are of such nature that they cannot just be packed up and
Operate-and-Transfer Law, and other related and necessary
activities, such as site acquisition, supply and/or installation of transported by PIATCO like a traveling circus caravan.
equipment and materials, implementation, construction,
completion, operation, maintenance, improvement, repair and
rehabilitation, regardless of the source of funding.
 204

Thus, the property subject of expropriation, the NAIA 3 facilities, are real property relates to the acquisition of real property, which under civil law includes buildings,

owned by PIATCO. This point is critical, considering the Governments insistence that roads and constructions adhered to the soil.

the NAIA 3 facilities cannot be deemed as the right-of-way, site or location of a It is moreover apparent that the law and its implementing rules commonly provide

national government infrastructure project, within the coverage of Rep. Act No. for a rule for the valuation of improvements and/or structures thereupon separate

8974. from that of the land on which such are constructed. Section 2 of Rep. Act No. 8974

There is no doubt that the NAIA 3 is not, under any sensible contemplation, a right- itself recognizes that the improvements or structures on the land may very well be

of-way. Yet we cannot agree with the Governments insistence that neither could the subject of expropriation proceedings. Section 4(a), in relation to Section 7 of the

NAIA 3 be a site or location. The petition quotes the definitions provided in Blacks law provides for the guidelines for the valuation of the improvements or structures

Law Dictionary of location as the specific place or position of a person or thing and to be expropriated. Indeed, nothing in the law would prohibit the application of

site as pertaining to a place or location or a piece of property set aside for specific Section 7, which provides for the valuation method of the improvements and or

use.[39] Yet even Blacks Law Dictionary provides that [t]he term [site] does not of structures in the instances wherein it is necessary for the Government to

itself necessarily mean a place or tract of land fixed by definite boundaries. [40] One expropriate only the improvements or structures, as in this case.

would assume that the Government, to back up its contention, would be able to The law classifies the NAIA 3 facilities as real properties just like the soil to which

point to a clear-cut rule that a site or location exclusively refers to soil, grass, they are adhered. Any sub-classifications of real property and divergent treatment

pebbles and weeds. There is none. based thereupon for purposes of expropriation must be based on substantial

Indeed, we cannot accept the Governments proposition that the only properties distinctions, otherwise the equal protection clause of the Constitution is violated.

that may be expropriated under Rep. Act No. 8974 are parcels of land. Rep. Act No. There may be perhaps a molecular distinction between soil and the inorganic

8974 contemplates within its coverage such real property constituting land, improvements adhered thereto, yet there are no purposive distinctions that would

buildings, roads and constructions of all kinds adhered to the soil. Section 1 of Rep. justify a variant treatment for purposes of expropriation. Both the land itself and

Act No. 8974, which sets the declaration of the laws policy, refers to real property the improvements thereupon are susceptible to private ownership independent of

acquired for national government infrastructure projects are promptly paid just each other, capable of pecuniary estimation, and if taken from the owner,

compensation.[41] Section 4 is quite explicit in stating that the scope of the law considered as a deprivation of property. The owner of improvements seized
 205

through expropriation suffers the same degree of loss as the owner of land seized Clearly then, we see no error on the part of the RTC when it ruled that Rep. Act No.

through similar means. Equal protection demands that all persons or things similarly 8974 governs the instant expropriation proceedings. The Proper Amount to be Paid

situated should be treated alike, both as to rights conferred and responsibilities under Rep. Act No. 8974

imposed. For purposes of expropriation, parcels of land are similarly situated as the
buildings or improvements constructed thereon, and a disparate treatment
between those two classes of real property infringes the equal protection clause.
Then, there is the matter of the proper amount which should be paid to PIATCO by
the Government before the writ of possession may issue, consonant to Rep. Act No.
8974.
At this juncture, we must address the observation made by the Office of the

Solicitor General in behalf of the Government that there could be no BIR zonal
Even as the provisions of Rep. Act No. 8974 call for that laws application in this case,
valuations on the NAIA 3 facility, as provided in Rep. Act No. 8974, since zonal
the threshold test must still be met whether its implementation would conform to
valuations are only for parcels of land, not for airport terminals. The Court agrees
the dictates of the Court in the 2004 Resolution. Unlike in the case of Rule 67, the
with this point, yet does not see it as an impediment for the application of Rep. Act
application of Rep. Act No. 8974 will not contravene the 2004 Resolution, which
No. 8974.
requires the payment of just compensation before any takeover of the NAIA 3
It must be clarified that PIATCO cannot be reimbursed or justly compensated for the
facilities by the Government. The 2004 Resolution does not particularize the extent
value of the parcel of land on which NAIA 3 stands. PIATCO is not the owner of the
such payment must be effected before the takeover, but it unquestionably requires
land on which the NAIA 3 facility is constructed, and it should not be entitled to just
at least some degree of payment to the private property owner before a writ of
compensation that is inclusive of the value of the land itself. It would be highly
possession may issue. The utilization of Rep. Act No. 8974 guarantees compliance
disingenuous to compensate PIATCO for the value of land it does not own. Its
with this bare minimum requirement, as it assures the private property owner the
entitlement to just compensation should be limited to the value of the
payment of, at the very least, the proffered value of the property to be seized. Such
improvements and/or structures themselves. Thus, the determination of just
payment of the proffered value to the owner, followed by the issuance of the writ
compensation cannot include the BIR zonal valuation under Section 4 of Rep. Act
of possession in favor of the Government, is precisely the schematic under Rep. Act
No. 8974.
No. 8974, one which facially complies with the prescription laid down in the 2004

Resolution.
 206

Under Rep. Act No. 8974, the Government is required to immediately pay the which the Government can immediately take possession of the property without

owner of the property the amount equivalent to the sum of (1) one hundred having to await precise determination of the valuation. Section 4(c) of Rep. Act No.

percent (100%) of the value of the property based on the current relevant zonal 8974 states that in case the completion of a government infrastructure project is of

valuation of the [BIR]; and (2) the value of the improvements and/or structures as utmost urgency and importance, and there is no existing valuation of the area

determined under Section 7. As stated above, the BIR zonal valuation cannot apply concerned, the implementing agency shall immediately pay the owner of the

in this case, thus the amount subject to immediate payment should be limited to property its proferred value, taking into consideration the standards prescribed in

the value of the improvements and/or structures as determined under Section 7, Section 5 [of the law].[44] The proffered value may strike as a highly subjective

with Section 7 referring to the implementing rules and regulations for the equitable standard based solely on the intuition of the government, but Rep. Act No. 8974

valuation of the improvements and/or structures on the land. Under the present does provide relevant standards by which proffered value should be based,[45] as

implementing rules in place, the valuation of the improvements/structures are to well as the certainty of judicial determination of the propriety of the proffered

be based using the replacement cost method.[42] However, the replacement cost is value.[46]

only one of the factors to be considered in determining the just compensation. In filing the complaint for expropriation, the Government alleged to have deposited

the amount of P3 Billion earmarked for expropriation, representing the assessed

In addition to Rep. Act No. 8974, the 2004 Resolution in Agan also mandated that value of the property. The making of the deposit, including the determination of the

the payment of just compensation should be in accordance with equity as well. amount of the deposit, was undertaken under the erroneous notion that Rule 67,

Thus, in ascertaining the ultimate amount of just compensation, the duty of the trial and not Rep. Act No. 8974, is the applicable law. Still, as regards the amount, the

court is to ensure that such amount conforms not only to the law, such as Rep. Act Court sees no impediment to recognize this sum of P3 Billion as the proffered value

No. 8974, but to principles of equity as well. under Section 4(b) of Rep. Act No. 8974. After all, in the initial determination of the

proffered value, the Government is not strictly required to adhere to any

Admittedly, there is no way, at least for the present, to immediately ascertain the predetermined standards, although its proffered value may later be subjected to

value of the improvements and structures since such valuation is a matter for judicial review using the standards enumerated under Section 5 of Rep. Act No.

factual determination.[43] Yet Rep. Act No. 8974 permits an expedited means by 8974.
 207

How should we appreciate the questioned order of Hon. Gingoyon, which pegged At the same time, the expressed linkage between the BIR zonal valuation and the

the amount to be immediately paid to PIATCO at around $62.3 Million? amount of just compensation in this case, is revelatory of erroneous thought on the

The Order dated 4 January 2005, which mandated such amount, proves problematic part of the RTC.

in that regard. While the initial sum of P3 Billion may have been based on the

assessed value, a standard which should not however apply in this case, the RTC We have already pointed out the irrelevance of the BIR zonal valuation as an

cites without qualification Section 4(a) of Rep. Act No. 8974 as the basis for the appropriate basis for valuation in this case, PIATCO not being the owner of the land

amount of $62.3 Million, thus leaving the impression that the BIR zonal valuation on which the NAIA 3 facilities stand. The subject order is flawed insofar as it fails to

may form part of the basis for just compensation, which should not be the case. qualify that such standard is inappropriate.

Moreover, respondent judge made no attempt to apply the enumerated guidelines

It does appear that the amount of US$62.3 Million was based on the certification
for determination of just compensation under Section 5 of Rep. Act No. 8974, as
issued by the LBP-Baclaran that the Republic of the Philippines maintained a total
required for judicial review of the proffered value.
balance in that branch amounting to such amount. Yet the actual representation of

The Court notes that in the 10 January 2005 Omnibus Order, the RTC noted that the the $62.3 Million is not clear. The Land Bank Certification expressing such amount

concessions agreement entered into between the Government and PIATCO stated does state that it was issued upon request of the Manila International Airport

that the actual cost of building NAIA 3 was not less than US$350 Million. [47] The RTC Authority purportedly as guaranty deposit for the expropriation complaint.[48] The

then proceeded to observe that while Rep. Act No. 8974 required the immediate Government claims in its Memorandum that the entire amount was made available

payment to PIATCO the amount equivalent to 100% of the value of NAIA 3, the as a guaranty fund for the final and executory judgment of the trial court, and not

amount deposited by the Government constituted only 18% of this value. At this merely for the issuance of the writ of possession.[49] One could readily conclude that

point, no binding import should be given to this observation that the actual cost of the entire amount of US$62.3 Million was intended by the Government to answer

building NAIA 3 was not less than US$350 Million, as the final conclusions on the for whatever guaranties may be required for the purpose of the expropriation

amount of just compensation can come only after due ascertainment in accordance complaint.

with the standards set under Rep. Act No. 8974, not the declarations of the parties.
 208

Still, such intention the Government may have had as to the entire US$62.3 Million having faithfully complied with Rep. Act No. 8974. For the law plainly requires direct

is only inferentially established. In ascertaining the proffered value adduced by the payment to the property owner, and not a mere deposit with the authorized

Government, the amount of P3 Billion as the amount deposited characterized in the government depositary. Without such direct payment, no writ of possession may be

complaint as to be held by [Land Bank] subject to the [RTCs] orders, [50] should be obtained.

deemed as controlling. There is no clear evidence that the Government intended to

Writ of Possession May Not Be Implemented Until Actual Receipt by PIATCO of
offer US$62.3 Million as the initial payment of just compensation, the wording of Proferred Value

the Land Bank Certification notwithstanding, and credence should be given to the

consistent position of the Government on that aspect. The Court thus finds another error on the part of the RTC. The RTC authorized the

issuance of the writ of possession to the Government notwithstanding the fact that

In any event, for the RTC to be able to justify the payment of US$62.3 Million to no payment of any amount had yet been made to PIATCO, despite the clear

PIATCO and not P3 Billion Pesos, he would have to establish that the higher amount command of Rep. Act No. 8974 that there must first be payment before the writ of

represents the valuation of the structures/improvements, and not the BIR zonal possession can issue. While the RTC did direct the LBP-Baclaran to immediately

valuation on the land wherein NAIA 3 is built. The Order dated 5 January 2005 fails release the amount of US$62 Million to PIATCO, it should have likewise suspended

to establish such integral fact, and in the absence of contravening proof, the the writ of possession, nay, withdrawn it altogether, until the Government shall

proffered value of P3 Billion, as presented by the Government, should prevail. have actually paid PIATCO. This is the inevitable consequence of the clear command

of Rep. Act No. 8974 that requires immediate payment of the initially determined

Strikingly, the Government submits that assuming that Rep. Act No. 8974 is amount of just compensation should be effected. Otherwise, the overpowering

applicable, the deposited amount of P3 Billion should be considered as the intention of Rep. Act No. 8974 of ensuring payment first before transfer of

proffered value, since the amount was based on comparative values made by the repossession would be eviscerated.

City Assessor.[51] Accordingly, it should be deemed as having faithfully complied with

the requirements of the statute.[52] While the Court agrees that P3 Billion should be Rep. Act No. 8974 represents a significant change from previous expropriation laws

considered as the correct proffered value, still we cannot deem the Government as such as Rule 67, or even Section 19 of the Local Government Code. Rule 67 and the
 209

Local Government Code merely provided that the Government deposit the initial While eminent domain lies as one of the inherent powers of the State, there is no

amounts[53] antecedent to acquiring possession of the property with, respectively, requirement that it undertake a prolonged procedure, or that the payment of the

an authorized private owner be protracted as far as practicable. In fact, the expedited procedure

Government depositary[54] or the proper court.[55] In both cases, the private owner of payment, as highlighted under Rep. Act No. 8974, is inherently more fair,

does not receive compensation prior to the deprivation of property. On the other especially to the layperson who would be hard-pressed to fully comprehend the

hand, Rep. Act No. 8974 mandates immediate payment of the initial just social value of expropriation in the first place. Immediate payment placates to some

compensation prior to the issuance of the writ of possession in favor of the degree whatever ill-will that arises from expropriation, as well as satisfies the

Government. demand of basic fairness.

Rep. Act No. 8974 is plainly clear in imposing the requirement of immediate The Court has the duty to implement Rep. Act No. 8974 and to direct compliance

prepayment, and no amount of statutory deconstruction can evade such requisite. with the requirement of immediate payment in this case. Accordingly, the Writ of

It enshrines a new approach towards eminent domain that reconciles the inherent Possession dated 21 December 2004 should be held in abeyance, pending proof of

unease attending expropriation proceedings with a position of fundamental equity. actual payment by the Government to PIATCO of the proffered value of the NAIA 3

While expropriation proceedings have always demanded just compensation in facilities, which totals P3,002,125,000.00.

exchange for private property, the previous deposit requirement impeded

Rights of the Government upon Issuance of the Writ of Possession
immediate compensation to the private owner, especially in cases wherein the

determination Once the Government pays PIATCO the amount of the proffered value of P3 Billion,

of the final amount of compensation would prove highly disputed. Under the new it will be entitled to the Writ of Possession. However, the Government questions

modality prescribed by Rep. Act No. 8974, the private owner sees immediate the qualification imposed by the RTC in its 4 January 2005 Order consisting of the

monetary recompense with the same degree of speed as the taking of his/her prohibition on the Government from performing acts of ownership such as

property awarding concessions or leasing any part of NAIA 3 to other parties. To be certain,

the RTC, in its 10 January 2005 Omnibus Order, expressly stated that it was not
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affirming the superfluous part of the Order [of 4 January 2005] prohibiting the Rep. Act No. 8974 provides the appropriate answer for the standard that governs

plaintiffs from awarding concessions or leasing any part of NAIA [3] to other the extent of the acts the Government may be authorized to perform upon the

parties.[56] Still, such statement was predicated on the notion that since the issuance of the writ of possession. Section 4 states that the court shall immediately

Government was not yet the owner of NAIA 3 until final payment of just issue to the implementing agency an order to take possession of the property

compensation, it was obviously incapacitated to perform such acts of ownership. and start the implementation of the project. We hold that accordingly, once the

Writ of Possession is effective, the Government itself is authorized to perform the

In deciding this question, the 2004 Resolution in Agan cannot be ignored, acts that are essential to the operation of the NAIA 3 as an international airport

particularly the declaration that [f]or the government to take over the said facility, it terminal upon the effectivity of the Writ of Possession. These would include the

has to compensate respondent PIATCO as builder of the said structures. The repair, reconditioning and improvement of the complex, maintenance of the

obvious import of this holding is that unless PIATCO is paid just compensation, the existing facilities and equipment, installation of new facilities and equipment,

Government is barred from taking over, a phrase which in the strictest sense could provision of services and facilities pertaining to the facilitation of air traffic and

encompass even a bar of physical possession of NAIA 3, much less operation of the transport, and other services that are integral to a modern-day international

facilities. airport.

The Governments position is more expansive than that adopted by the Court. It

There are critical reasons for the Court to view the 2004 Resolution less stringently, argues that with the writ of possession, it is enabled to perform acts de jure on the

and thus allow the operation by the Government of NAIA 3 upon the effectivity of expropriated property. It cites Republic v. Tagle,[57] as well as the statement therein

the Writ of Possession. For one, the national prestige is diminished every day that that the expropriation of real property does not include mere physical entry or

passes with the NAIA 3 remaining mothballed. For another, the continued non-use occupation of land, and from them concludes that its mere physical entry and

of the facilities contributes to its physical deterioration, if it has not already. And occupation of the property fall short of the taking of title, which includes all the

still for another, the economic benefits to the Government and the country at large rights that may be exercised by an owner over the subject property.

are beyond dispute once the NAIA 3 is put in operation.

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This conclusion is indeed lifted directly from statements in Tagle,[58] but not from expropriated property pending payment of just compensation. We reiterated the

the ratio decidendi of that case. Tagle concerned whether a writ of possession in various doctrines of such import in our recent holding in Republic v. Lim:[60]

favor of the Government was still necessary in light of the fact that it was already in The recognized rule is that title to the property expropriated shall
pass from the owner to the expropriator only upon full payment of
actual possession of the property. In ruling that the Government was entitled to the the just compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic jurisdictions.
writ of possession, the Court in Tagle explains that such writ vested not only In Association of Small Landowners in the Philippines, Inc. et al., vs.
Secretary of Agrarian Reform[[61]], thus:
physical possession, but also the legal right to possess the property. Continues the
Title to property which is the subject of
Court, such legal right to possess was particularly important in the case, as there condemnation proceedings does not vest the
condemnor until the judgment fixing just
was a pending suit against the Republic for unlawful detainer, and the writ of compensation is entered and paid, but the
condemnors title relates back to the date on
possession would serve to safeguard the Government from eviction.[59] which the petition under the Eminent Domain
Act, or the commissioners report under the Local
Improvement Act, is filed.

At the same time, Tagle conforms to the obvious, that there is no transfer of x x x Although the right to appropriate and use
land taken for a canal is complete at the time of
ownership as of yet by virtue of the writ of possession. Tagle may concede that the entry, title to the property taken remains in the
owner until payment is actually
Government is entitled to exercise more than just the right of possession by virtue made. (Emphasis supplied.)

of the writ of possession, yet it cannot be construed to grant the Government the In Kennedy v. Indianapolis, the US Supreme Court
cited several cases holding that title to property
entire panoply of rights that are available to the owner. Certainly, neither Tagle nor does not pass to the condemnor until just
compensation had actually been made. In fact,
any other case or law, lends support to the Governments proposition that it the decisions appear to be uniform to this effect.
As early as 1838, in Rubottom v. McLure, it was
acquires beneficial or equitable ownership of the expropriated property merely held that actual payment to the owner of the
condemned property was a condition precedent
through the writ of possession. to the investment of the title to the property in
the State albeit not to the appropriation of it to
public use. In Rexford v. Knight, the Court of
Appeals of New York said that the construction
Indeed, this Court has been vigilant in defense of the rights of the property owner upon the statutes was that the fee did not vest in
the State until the payment of the compensation
who has been validly deprived of possession, yet retains legal title over the although the authority to enter upon and
appropriate the land was complete prior to the
payment. Kennedy further said that both on
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principle and authority the rule is . . . that the
right to enter on and use the property is
complete, as soon as the property is actually
appropriated under the authority of law for a
public use, but that the title does not pass from
the owner without his consent, until just
compensation has been made to him.
Our own Supreme Court has held in Visayan
Refining Co. v. Camus and Paredes, that:
assistance of not more than three (3)
commissioners. x x x.
It is only upon the completion of these two stages that expropriation
is said to have been completed. In Republic v. Salem Investment
Corporation[[63]] , we ruled that, the process is not completed until
payment of just compensation. Thus, here, the failure of the
Republic to pay respondent and his predecessors-in-interest for a
period of 57 years rendered the expropriation process incomplete.

If the laws which we have exhibited or cited in Lim serves fair warning to the Government and its agencies who consistently refuse
the preceding discussion are attentively
examined it will be apparent that the method of to pay just compensation due to the private property owner whose property had
expropriation adopted in this jurisdiction is such
as to afford absolute reassurance that no piece been
of land can be finally and irrevocably taken from
an unwilling owner until compensation is expropriated. At the same time, Lim emphasizes the fragility of the rights of the
paid....(Emphasis supplied.)
Government as possessor pending the final payment of just compensation, without
Clearly, without full payment of just compensation, there can be no
transfer of title from the landowner to the expropriator. Otherwise diminishing the potency of such rights. Indeed, the public policy, enshrined
stated, the Republics acquisition of ownership is conditioned upon
the full payment of just compensation within a reasonable time. foremost in the Constitution, mandates that the Government must pay for the

Significantly, in Municipality of Bian v. Garcia[[62]] this Court ruled private property it expropriates. Consequently, the proper judicial attitude is to
that the expropriation of lands consists of two stages, to wit:
guarantee compliance with this primordial right to just compensation.
The first is concerned with the determination of
the authority of the plaintiff to exercise the Final Determination of Just Compensation Within 60 Days
power of eminent domain and the propriety of its
exercise in the context of the facts involved in the
suit. It ends with an order, if not of dismissal of The issuance of the writ of possession does not write finis to the expropriation
the action, of condemnation declaring that the
plaintiff has a lawful right to take the property proceedings. As earlier pointed out, expropriation is not completed until payment
sought to be condemned, for the public use or
purpose described in the complaint, upon the to the property owner of just compensation. The proffered value stands as merely a
payment of just compensation to be determined
as of the date of the filing of the complaint x x x. provisional determination of the amount of just compensation, the payment of

The second phase of the eminent domain action which is sufficient to transfer possession of the property to the Government.
is concerned with the determination by the court
of the just compensation for the property sought
to be taken. This is done by the court with the
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However, to effectuate the transfer of ownership, it is necessary for the no longer possible for the RTC to determine the just compensation due PIATCO

Government to pay the property owner the final just compensation. within sixty (60) days from the filing of the complaint last 21 December 2004, as

In Lim, the Court went as far as to countenance, given the exceptional contemplated by the law. Still, it is feasible to effectuate the spirit of the law by

circumstances of that case, the reversion of the validly expropriated property to requiring the trial court to make such determination within sixty (60) days

private ownership due to the failure of the Government to pay just compensation in from finality of this decision, in accordance with the guidelines laid down in Rep.

that case.[64] It was noted in that case that the Government deliberately refused to Act No. 8974 and its Implementing Rules.

pay just compensation. The Court went on to rule that in cases where the Of course, once the amount of just compensation has been finally determined, the

government failed to pay just compensation within five (5) years from the finality of Government is obliged to pay PIATCO the said amount. As shown in Lim and other

the judgment in the expropriation proceedings, the owners concerned shall have like-minded cases, the Governments refusal to make such payment is indubitably

the right to recover possession of their property.[65] actionable in court.

Rep. Act No. 8974 mandates a speedy method by which the final determination of

just compensation may be had. Section 4 provides: Appointment of Commissioners

The next argument for consideration is the claim of the Government that the RTC
In the event that the owner of the property contests the
implementing agencys proffered value, the court shall determine the erred in appointing the three commissioners in its 7 January 2005 Order without
just compensation to be paid the owner within sixty (60) days from
the date of filing of the expropriation case. When the decision of the prior consultation with either the Government or PIATCO, or without affording the
court becomes final and executory, the implementing agency shall
pay the owner the difference between the amount already paid and Government the opportunity to object to the appointment of these commissioners.
the just compensation as determined by the court.
We can dispose of this argument without complication.
We hold that this provision should apply in this case. The sixty (60)-day period

prescribed in Rep. Act No. 8974 gives teeth to the laws avowed policy to ensure that
It must be noted that Rep. Act No. 8974 is silent on the appointment of
owners of real property acquired for national government infrastructure projects
commissioners tasked with the ascertainment of just compensation.[67]This protocol
are promptly paid just compensation.[66] In this case, there already has been
though is sanctioned under Rule 67. We rule that the appointment of
irreversible delay in the prompt payment of PIATCO of just compensation, and it is
commissioners under Rule 67 may be resorted to, even in expropriation
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proceedings under Rep. Act No. 8974, since the application of the provisions of Rule obligatory on the part of the court, hence we cannot impute error on the part of the

67 in that regard do not conflict with the statute. As earlier stated, Section 14 of the RTC in its exercise of solitary discretion in the appointment of the commissioners.

Implementing Rules does allow such other incidents affecting the complaint to be

resolved under the provisions on expropriation of Rule 67 of the Rules of Court. What Rule 67 does allow though is for the parties to protest the appointment of any

Even without Rule 67, reference during trial to a commissioner of the examination of these commissioners, as provided under Section 5 of the Rule. These objections

of an issue of fact is sanctioned under Rule 32 of the Rules of Court. though must be made filed within ten (10) days from service of the order of

appointment of the commissioners.[71] In this case, the proper recourse of the

But while the appointment of commissioners under the aegis of Rule 67 may be Government to challenge the choice of the commissioners is to file an objection

sanctioned in expropriation proceedings under Rep. Act No. 8974, the standards to with the trial court, conformably with Section 5, Rule 67, and not as it has done,

be observed for the determination of just compensation are provided not in Rule 67 assail the same through a special civil action for certiorari. Considering that the

but in the statute. In particular, the governing standards for the determination of expropriation proceedings in this case were effectively halted seven (7) days after

just compensation for the NAIA 3 facilities are found in Section 10 of the the Order appointing the commissioners,[72] it is permissible to allow the parties to

Implementing Rules for Rep. Act No. 8974, which provides for the replacement cost file their objections with the RTC within five (5) days from finality of this decision.

method in the valuation of improvements and structures.[68] Insufficient Ground for Inhibition of Respondent Judge

The final argument for disposition is the claim of the Government is that Hon.

Nothing in Rule 67 or Rep. Act No. 8974 requires that the RTC consult with the Gingoyon has prejudged the expropriation case against the Governments cause

parties in the expropriation case on who should be appointed as commissioners. and, thus, should be required to inhibit himself. This grave charge is predicated on

Neither does the Court feel that such a requirement should be imposed in this case. facts which the Government characterizes as undeniable. In particular, the

We did rule in Municipality of Talisay v. Ramirez[69] that there is nothing to prevent Government notes that the 4 January 2005 Order was issued motu proprio, without

[the trial court] from seeking the recommendations of the parties on [the] matter any preceding motion, notice or hearing. Further, such order, which directed the

[of appointment of commissioners], the better to ensure their fair payment of US$62 Million to PIATCO, was attended with error in the computation

representation.[70] At the same time, such solicitation of recommendations is not

 215

of just compensation. The Government also notes that the said Order was issued The Governments contentions against Hon. Gingoyon are severely undercut by the

even before summons had been served on PIATCO. fact that the 21 December 2004 Order, which the 4 January 2005 Order sought to

rectify, was indeed severely flawed as it erroneously applied the provisions of Rule

The disqualification of a judge is a deprivation of his/her judicial power [73] and 67 of the Rules of Court, instead of Rep. Act No. 8974, in ascertaining compliance

should not be allowed on the basis of mere speculations and surmises. It certainly with the requisites for the issuance of the writ of possession. The 4 January

cannot be predicated on the adverse nature of the judges rulings towards the
2005 Order, which according to the Government establishes Hon. Gingoyons bias,
movant for inhibition, especially if these rulings are in accord with law. Neither was promulgated precisely to correct the previous error by applying the correct
provisions of law. It would not speak well of the Court if it sanctions a judge for
could inhibition be justified merely on the erroneous nature of the rulings of the wanting or even attempting to correct a previous erroneous order which precisely
is the right move to take.
judge. We emphasized in Webb v. People:[74]
To prove bias and prejudice on the part of respondent Neither are we convinced that the motu proprio issuance of the 4 January
judge, petitioners harp on the alleged adverse and erroneous
rulings of respondent judge on their various motions. By 2005 Order, without the benefit of notice or hearing, sufficiently evinces bias on the
themselves, however, they do not sufficiently prove bias and
prejudice to disqualify respondent judge. To be disqualifying, the part of Hon. Gingoyon. The motu proprio amendment by a court of an erroneous
bias and prejudice must be shown to have stemmed from an
extrajudicial source and result in an opinion on the merits on some order previously issued may be sanctioned depending on the circumstances, in line
basis other than what the judge learned from his participation in
the case. Opinions formed in the course of judicial proceedings, with the long-recognized principle that every court has inherent power to do all
although erroneous, as long as they are based on the evidence
presented and conduct observed by the judge, do not prove things reasonably necessary for the administration of justice within the scope of its
personal bias or prejudice on the part of the judge. As a general
rule, repeated rulings against a litigant, no matter how erroneous jurisdiction.[76] Section 5(g), Rule 135 of the Rules of Court further recognizes the
and vigorously and consistently expressed, are not a basis for
disqualification of a judge on grounds of bias and prejudice. inherent power of courts to amend and control its process and orders so as to make
Extrinsic evidence is required to establish bias, bad faith, malice or
them conformable to law and justice,[77] a power which Hon. Gingoyon noted in his
corrupt purpose, in addition to the palpable error which may be
inferred from the decision or order itself. Although the decision
10 January 2005 Omnibus Order.[78] This inherent power includes the right of the
may seem so erroneous as to raise doubts concerning a judge's
integrity, absent extrinsic evidence, the decision itself would be court to reverse itself, especially when in its honest opinion it has committed an
insufficient to establish a case against the judge. The only
exception to the rule is when the error is so gross and patent as to error or mistake in judgment, and that to adhere to its decision will cause injustice
produce an ineluctable inference of bad faith or malice.[75]
to a party litigant.[79]
 216

Certainly, the 4 January 2005 Order was designed to make the RTCs previous order writ of possession itself is not subject to hearing. Perhaps the conduct of a hearing

conformable to law and justice, particularly to apply the correct law of the case. Of under these circumstances would be prudent. However, hearing is not mandatory,

course, as earlier established, this effort proved incomplete, as the 4 January and the failure to conduct one does not establish the manifest bias required for the

2005 Order did not correctly apply Rep. Act No. 8974 in several respects. Still, at inhibition of the judge.

least, the 4 January 2005 Order correctly reformed the most basic premise of the

case that Rep. Act No. 8974 governs the expropriation proceedings. The Government likewise faults Hon. Gingoyon for using the amount of US$350

Nonetheless, the Government belittles Hon. Gingoyons invocation of Section 5(g), Million as the basis for the 100% deposit under Rep. Act No. 8974. The Court has

Rule 135 as patently without merit. Certainly merit can be seen by the fact that noted that this statement was predicated on the erroneous belief that the BIR zonal

the 4 January 2005 Order reoriented the expropriation proceedings towards the valuation applies as a standard for determination of just compensation in this case.

correct governing law. Still, the Government claims that the unilateral act of the RTC Yet this is manifest not of bias, but merely of error on the part of the judge. Indeed,

did not conform to law or justice, as it was not afforded the right to be heard. the Government was not the only victim of the errors of the RTC in the assailed

The Court would be more charitably disposed towards this argument if not for the orders. PIATCO itself was injured by the issuance by the RTC of the writ of

fact that the earlier order with the 4 January 2005 Ordersought to correct was itself possession, even though the former had yet to be paid any amount of just

issued without the benefit of any hearing. In fact, nothing either in Rule 67 or Rep. compensation. At the same time, the Government was also prejudiced by the

Act No. 8975 requires the conduct of a hearing prior to the issuance of the writ of erroneous ruling of the RTC that the amount of US$62.3 Million, and not P3 Billion,

possession, which by design is available immediately upon the filing of the should be released to PIATCO.

complaint provided that the requisites attaching thereto are present. Indeed, this

expedited process for the obtention of a writ of possession in expropriation cases The Court has not been remiss in pointing out the multiple errors committed by the

comes at the expense of the rights of the property owner to be heard or to be RTC in its assailed orders, to the prejudice of both parties. This attitude of error

deprived of possession. Considering these predicates, it would be highly awry to towards all does not ipso facto negate the charge of bias. Still, great care should be

demand that an order modifying the earlier issuance of a writ of possession in an had in requiring the inhibition of judges simply because the magistrate did err.

expropriation case be barred until the staging of a hearing, when the issuance of the

Incompetence may be a ground for administrative sanction, but not for inhibition,
which requires lack of objectivity or impartiality to sit on a case.
The Court should necessarily guard against adopting a standard that a judge should
be inhibited from hearing the case if one litigant loses trust in the judge. Such loss
of trust on the part of the Government may be palpable, yet inhibition cannot be
grounded merely on the feelings of the party-litigants. Indeed, every losing litigant
in any case can resort to claiming that the judge was biased, and he/she will gain a
sympathetic ear from friends, family, and people who do not understand the
judicial process. The test in believing such a proposition should not be the
vehemence of the litigants claim of bias, but the Courts judicious estimation, as
people who know better than to believe any old cry of wolf!, whether such bias has
been irrefutably exhibited.
The Court acknowledges that it had been previously held that at the very first sign
of lack of faith and trust in his actions, whether well-grounded or not, the judge has
no other alternative but to inhibit himself from the case.[80] But this doctrine is
qualified by the entrenched rule that a judge may not be legally prohibited from
sitting in a litigation, but when circumstances appear that will induce doubt to his
honest actuations and probity in favor of either party, or incite such state of mind,
he should conduct a careful self-
examination. He should exercise his discretion in a way that the people's faith in the
Courts of Justice is not impaired.[81] And a self-assessment by the judge that he/she
217
is not impaired to hear the case will be respected by the Court absent any evidence
to the contrary. As held in Chin v. Court of Appeals:
An allegation of prejudgment, without more, constitutes mere
conjecture and is not one of the "just and valid reasons"
contemplated in the second paragraph of Rule 137 of the Rules of
Court for which a judge may inhibit himself from hearing the case.
We have repeatedly held that mere suspicion that a judge is partial
to a party is not enough. Bare allegations of partiality and
prejudgment will not suffice in the absence of clear and convincing
evidence to overcome the presumption that the judge will
undertake his noble role to dispense justice according to law and
evidence and without fear or favor. There should be adequate
evidence to prove the allegations, and there must be showing that
the judge had an interest, personal or otherwise, in the prosecution
of the case. To be a disqualifying circumstance, the bias and
prejudice must be shown to have stemmed from an extrajudicial
source and result in an opinion on the merits on some basis other
than what the judge learned from his participation in the case.[82]
The mere vehemence of the Governments claim of bias does not translate to clear
and convincing evidence of impairing bias. There is no sufficient ground to direct
the inhibition of Hon. Gingoyon from hearing the expropriation case.
In conclusion, the Court summarizes its rulings as follows:
(1) The 2004 Resolution in Agan sets the base requirement that has to be observed
before the Government may take over the NAIA 3, that there must be payment to
PIATCO of just compensation in accordance with law and equity. Any ruling in the
present expropriation case must be conformable to the dictates of the Court as
pronounced in the Agan cases.
 218

(2) Rep. Act No. 8974 applies in this case, particularly insofar as it requires the (6) There was no grave abuse of discretion attending the RTC Order appointing the

immediate payment by the Government of at least the proffered value of the NAIA commissioners for the purpose of determining just compensation. The provisions

3 facilities to PIATCO and provides certain valuation standards or methods for the on commissioners under Rule 67 shall apply insofar as they are not inconsistent

determination of just compensation. with Rep. Act No. 8974, its Implementing Rules, or the rulings of the Court in Agan.

(3) Applying Rep. Act No. 8974, the implementation of Writ of Possession in favor of (7) The Government shall pay the just compensation fixed in the decision of the

the Government over NAIA 3 is held in abeyance until PIATCO is directly paid the trial court to PIATCO immediately upon the finality of the said decision.

amount of P3 Billion, representing the proffered value of NAIA 3 under Section 4(c) (8) There is no basis for the Court to direct the inhibition of Hon. Gingoyon.

of the law.

(4) Applying Rep. Act No. 8974, the Government is authorized to start the All told, the Court finds no grave abuse of discretion on the part of the RTC to

implementation of the NAIA 3 Airport terminal project by performing the acts that warrant the nullification of the questioned orders. Nonetheless, portions of these

are essential to the operation of the NAIA 3 as an international airport terminal orders should be modified to conform with law and the pronouncements made by

upon the effectivity of the Writ of Possession, subject to the conditions above- the Court herein.

stated. As prescribed by the Court, such authority encompasses the repair,

reconditioning and improvement of the complex, maintenance of the existing WHEREFORE, the Petition is GRANTED in PART with respect to the orders dated 4

facilities and equipment, installation of new facilities and equipment, provision of January 2005 and 10 January 2005 of the lower court. Said orders are AFFIRMED

services and facilities pertaining to the facilitation of air traffic and transport, and with the following MODIFICATIONS:

other services that are integral to a modern-day international airport.[83] 1) The implementation of the Writ of Possession dated 21 December

(5) The RTC is mandated to complete its determination of the just compensation 2005 is HELD IN ABEYANCE, pending payment by petitioners to

within sixty (60) days from finality of this Decision. In doing so, the RTC is obliged to PIATCO of the amount of Three Billion Two Million One Hundred

comply with law and equity as ordained in Again and the standard set under Twenty Five Thousand Pesos (P3,002,125,000.00), representing the

Implementing Rules of Rep. Act No. 8974 which is the replacement cost method as proffered value of the NAIA 3 facilities;

the standard of valuation of structures and improvements.


2) Petitioners, upon the effectivity of the Writ of Possession, are
authorized start the implementation of the Ninoy Aquino
International Airport Pasenger Terminal III project by performing the
acts that are essential to the operation of the said International
Airport Passenger Terminal project;
3) RTC Branch 117 is hereby directed, within sixty (60) days from finality
of this Decision, to determine the just compensation to be paid to
PIATCO by the Government.
The Order dated 7 January 2005 is AFFIRMED in all respects subject to the
qualification that the parties are given ten (10) days from finality of this Decision to
file, if they so choose, objections to the appointment of the commissioners decreed
therein.
The Temporary Restraining Order dated 14 January 2005 is hereby LIFTED.
No pronouncement as to costs.
SO ORDERED.
Republic vs. Judge Gingoyon G.R. No. 166429 December 19, 2005
FACTS
The present controversy has its roots with the promulgation of the Court’s decision
in Agan v. PIATCO, promulgated in2003 (2003 Decision). This decision nullified the
“Concession Agreement for the Build-Operate-and-Transfer Arrangementof the
Ninoy Aquino International Airport Passenger Terminal III” entered into between
the Philippine Government(Government) and the Philippine International Air
219
Terminals Co., Inc. (PIATCO), as well as the amendments andsupplements
thereto.The agreement had authorized PIATCO to build a new international airport
terminal (NAIA 3), as well as a franchise tooperate and maintain the said terminal
during the concession period of 25 years. The contracts were nullified and that
theagreement was contrary to public policy. At the time of the promulgation of the
2003 Decision, the NAIA 3 facilities hadalready been built by PIATCO and were
nearing completion. However, the ponencia was silent as to the legal status of the
NAIA 3 facilities following the nullification of the contracts, as well as whatever
rights of PIATCO for reimbursementfor its expenses in the construction of the
facilities. After the promulgation of the rulings in Agan, the NAIA 3 facilities have
remained in the possession of PIATCO, despitethe avowed intent of the
Government to put the airport terminal into immediate operation. The
Government and PIATCOconducted several rounds of negotiation regarding the
NAIA 3 facilities.In 2004, the Government filed a Complaint for expropriation with
the Pasay RTC. The Government sought upon the filingof the complaint the
issuance of a writ of possession authorizing it to take immediate possession and
control overthe NAIA 3 facilities. The Government also declared that it had
deposited the amount of P3,002,125,000.00 (3 Billion) inCash with the Land Bank
of the Philippines, representing the NAIA 3 terminal’s assessed value for taxation
purposes. TheGovernment insists that Rule 67 of the Rules of Court governs the
expropriation proceedings in this case to the exclusionof all other laws. On the
other hand, PIATCO claims that it is Rep. Act No. 8974 which does apply.
ISSUE: Whether or not Rule 67 of the Rules of Court or Rep. Act No. 8974 governs
the expropriation proceedings in this case?
HELD:
The 2004 Resolution in Agan sets the base requirement that has to be observed
before the Government may take overthe NAIA 3, that there must be payment to
PIATCO of just compensation in accordance with law and equity. Any ruling inthe
present expropriation case must be conformable to the dictates of the Court as
pronounced in the Agan cases.Rule 67 outlines the procedure under which eminent
domain may be exercised by the Government.Rep. Act No. 8974, which covers
expropriation proceedings intended for national government infrastructure
projects. Rep. Act No. 8974, which provides for a procedure eminently more
favorable to the property owner than Rule 67, inescapably applies in instances
 220

when the national government expropriates property “for national government

infrastructureprojects.” Thus, if expropriation is engaged

in by the national government for purposes other than national

infrastructureprojects, the assessed value standard and the deposit mode
prescribed in Rule 67 continues to apply.Rep. Act No. 8974 applies in this case,
particularly insofar as it requires the immediate payment by the Government of
atleast the proffered value of the NAIA 3 facilities to PIATCO and provides certain
valuation standards or methods for thedetermination of just compensation.
Applying Rep. Act No. 8974, the implementation of Writ of Possession in favor of
the Government over NAIA 3 is held inabeyance until PIATCO is directly paid the
amount of P3 Billion, representing the proffered value of NAIA 3 under Section

4(c) of the law.


EN BANC
A.M. No. P-08-2535
OFFICE OF THE COURT ADMINISTRATOR,
- versus -
June 23, 2010
DECISION
Per curiam:*
This complaint for gross misconduct against Rene de Guzman (De Guzman), Clerk,
Regional Trial Court (RTC) of Guimba, Nueva Ecija, Branch 31, is an offshoot of the
complaint filed by Atty. Hugo B. Sansano, Jr. (Atty. Sansano) relative to the alleged
incompetence/inefficiency of the RTC of Guimba, Nueva Ecija, Branch 31, in the
transmittal of the records of Criminal Case No. 1144-G[2] to the Court of Appeals.
In our Resolution dated September 17, 2007, we adopted the findings and
recommendation of the Office of the Court Administrator (OCA) declaring as closed
and terminated the administrative matter relative to the delay in the transmittal of
the records of Criminal Case No. 1144-G, and exonerating De Guzman and
Florencio M. Reyes (Reyes), the Officer-in-Charge of the RTC of Guimba, Nueva
Ecija, Branch 31.
However, in the same Resolution, we also required De Guzman to comment on the
allegation that he is using illegal drugs and had been manifesting irrational and
queer behavior while at work. According to Reyes, De Guzmans manifestations of
absurd behavior prompted Judge Napoleon R. Sta. Romana (Judge Sta. Romana) to
request the Philippine National Police Crime Laboratory to perform a drug test on
De Guzman. As alleged by Reyes:
x x x Mr. Rene de Guzman, the Docket Clerk, was [in] charge of the preparation and
transmission of the records on appeal x x x. Nonetheless, x x x Judge Sta. Romana
would x x x often x x x [remind him] about the transmittal of records of the
appealed cases [for more than] a dozen times, even personally confronting Mr.
Rene de Guzman about the matter, x x x though unsuccessfully x x x. Mr. De
221
Guzman would just x x x dismiss the subject in ridicule and with the empty
assurance that the task is as good as finished and what x x x need[s] to be done [is]
simply retyping of the corrected indices or the like and that he would submit the
same in [no] time at all. This was after a number of weeks from March 26, 2003
after Mr. De Guzman made the undersigned sign the transmittal of PP v. Manangan
which he allegedly did not transmit before owing to some minor corrections in the
indexing. All too often, (it seems to have been customary on his part, for this he
would do to other pressing assignment) he would come to the office the next day,
jubilant that the problem has been solved at last! But to no avail. This attitude
seemingly bordering on the irrational if not to say that a sense of responsibility is
utterly lacking may have given cue for Judge Sta. Romana to have Mr. De Guzman
undergo a drug test x x x.[3]
That Mr. De Guzman could brush aside even the personal importuning by the judge
is a fete no other of our co-employees dare emulate. On the contrary, everybody is
apprehensive for his well being and in his behalf. x x x
On May 24, 2004, Judge Sta. Romana requested the Nueva Ecija Provincial Crime
Laboratory Office to conduct a drug test on De Guzman. On May 26, 2004, De
Guzman underwent a qualitative examination the results of which yielded positive
for Tetrahydrocannabinol metabolites (marijuana) and Methamphetamine (shabu),
both dangerous drugs.
In our Resolution of September 17, 2007, we required De Guzman to submit his
comment on the charge of misconduct relative to the alleged use of prohibited
drugs within 10 days from notice. Notwithstanding the Courts directive, De
Guzman failed to file his Comment. Thus, on January 23, 2008, we directed De
Guzman to show cause why he should not be held in contempt for failure to
comply with the September 17, 2007 Resolution. At the same time, we resolved to
require him to submit his comment within 10 days from notice.
De Guzman complied with our directive only on March 12, 2008. In his letter, De
Guzman claimed that he failed to comply with the Courts directive because he lost
his copy of the September 17, 2007 Resolution.
Treating De Guzmans letter as his Comment, we referred the same to the OCA for
evaluation, report and recommendation. The OCA submitted its Report and
Recommendation on July 23, 2008 which reads in part:

Noticeably, respondent de Guzman did not challenge the authenticity and validity
of the chemistry report of the Nueva Ecija Provincial Crime Laboratory Office which
found him positive for marijuana and shabu. He did not also promptly submit
another test report or other document to controvert the drug test report. His plain
refutation of the charge and his willingness to submit himself now to a drug test
are token attempts at candor and assertion of innocence. These perfunctory
attempts cannot prevail over the solitary yet compelling evidence of misconduct
for use of prohibited drugs.
Relative to respondents delay in filing his comment to the charge of misconduct,
his claim that he lost and misplaced (his) copy of said resolution, and for that (he)
almost forgot about it is neither a valid reason nor an excuse for the delay in
complying with the order of the Court. His flippant attitude towards the repeated
orders of the Court to explain his conduct does not merit consideration and
justification for delay.
It is settled that respondents indifference to [the resolutions] requiring him to
comment on the accusation(s) in the complaint thoroughly and substantially is
gross misconduct, and may even be considered as outright disrespect to the Court.
After all, a resolution of the Supreme Court is not a mere request and should be
complied with promptly and completely. Such failure to comply accordingly betrays
not only a recalcitrant streak in character, but has likewise been considered as an
utter lack of interest to remain with, if not contempt of the judicial system.
It should be mentioned that this is not the first instance that respondent is ordered
to account for his failure to comply with a court order. Earlier, he was required to
explain to the Court his failure to promptly submit a copy of the affidavit of retired
court stenographer Jorge Caoile and to show cause why he should not be
administratively dealt with for his failure to comply with a show cause order.
For failure to overcome the charge of use of prohibited drugs and to satisfactorily
explain his failure to submit promptly his compliance to the Courts show cause
order, respondent may be held guilty of two counts of gross misconduct.
The OCA thus submitted the following recommendations for consideration of the
Court viz:
1. The instant matter be RE-DOCKETED as a regular administrative case; and
222
2. Respondent Rene de Guzman be found guilty of gross misconduct and
accordingly be DISMISSED from the service effective immediately with
forfeiture of all benefits except accrued leave credits, with prejudice to
his re-employment in any branch or instrumentality of the government,
including government-owned or controlled agencies, corporations and
financial institutions.[4]
On August 27, 2008, we required De Guzman to manifest within 10 days from
receipt whether he is willing to submit the case for resolution on the basis of the
pleadings/records already filed and submitted. As before, De Guzman simply
ignored our directive. Consequently, on September 28, 2009, we deemed waived
the filing of De Guzmans manifestation.
Our Ruling
We adopt the findings and recommendation of the OCA.
We note that De Guzman is adept at ignoring the Courts directives. In his letter-
explanation in the administrative matter relative to the delay in the transmittal of
the records of Criminal Case No. 1144-G, he requested for a period of 10 days or
until November 15, 2004 within which to submit the Affidavit of George Caoile
(Caoile), the retired Stenographer, as part of his comment. However, despite the
lapse of five months, De Guzman still failed to submit Caoiles affidavit.
Subsequently, we furnished him with a copy of the April 18, 2005 Resolution
wherein we mentioned that we are awaiting his submission of the affidavit of
Caoile which shall be considered as part of his (De Guzmans) comment.
Nine months from the time he undertook to submit the affidavit of Caoile, De
Guzman has yet to comply with his undertaking. Thus, on August 10, 2005, we
required De Guzman to show cause why he should not be disciplinarily dealt with
or held in contempt for such failure.
Unfortunately, De Guzman merely ignored our show cause order. Consequently, on
November 20, 2006, we imposed upon him a fine of P1,000.00. Finally, on January
24, 2007, or after the lapse of one year and two months, De Guzman submitted the
affidavit of Caoile.
Similarly, we also required De Guzman to file his comment within 10 days from
notice as regards the allegation that he was using prohibited drugs. However, he

again ignored our directive as contained in the Resolution of September 17, 2007.
Thus, on January 23, 2008, we required him to show cause why he should not be
held in contempt for such failure. By way of explanation, De Guzman submitted a
letter dated March 12, 2008 wherein he claimed that he failed to file his comment
on the charge of miscondouct because he allegedly lost his copy of the said
September 17, 2007 Resolution.
Finally, on August 27, 2008, we required De Guzman to manifest whether he is
willing to submit the case for resolution based on the pleadings submitted. As
before, he failed to comply with the same.
As correctly observed by the OCA, De Guzman has shown his propensity to defy the
directives of this Court.[5] However, at this juncture, we are no longer wont to
countenance such disrespectful behavior. As we have categorically declared in
Office of the Court Administrator v. Clerk of Court Fe P. Ganzan, MCTC, Jasaan,
Claveria, Misamis Oriental:[6]
x x x A resolution of the Supreme Court should not be construed as a mere request,
and should be complied with promptly and completely. Such failure to comply
betrays, not only a recalcitrant streak in character, but also disrespect for the
lawful order and directive of the Court. Furthermore, this contumacious conduct of
refusing to abide by the lawful directives issued by the Court has likewise been
considered as an utter lack of interest to remain with, if not contempt of, the
system. Ganzans transgression is highlighted even more by the fact that she is an
employee of the Judiciary, who, more than an ordinary citizen, should be aware of
her duty to obey the orders and processes of the Supreme Court without delay. x x
x
Anent the use of illegal drugs, we have upheld in Social Justice Society (SJS) v.
Dangerous Drugs Board[7] the validity and constitutionality of the mandatory but
random drug testing of officers and employees of both public and private offices.
As regards public officers and employees, we specifically held that:
Like their counterparts in the private sector, government officials and employees
also labor under reasonable supervision and restrictions imposed by the Civil
Service law and other laws on public officers, all enacted to promote a high
standard of ethics in the public service. And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it should pass the test
223
for civil servants, who, by constitutional demand, are required to be accountable at
all times to the people and to serve them with utmost responsibility and
efficiency.[8]
Parenthetically, in A.M. No. 06-1-01-SC[9] dated January 17, 2006, the Court has
adopted guidelines for a program to deter the use of dangerous drugs and institute
preventive measures against drug abuse for the purpose of eliminating the hazards
of drug abuse in the Judiciary, particularly in the first and second level courts. The
objectives of the said program are as follows:
1. To detect the use of dangerous drugs among lower court employees, impose
disciplinary sanctions, and provide administrative remedies in cases where an
employee is found positive for dangerous drug use.
2. To discourage the use and abuse of dangerous drugs among first and second
level court employees and enhance awareness of their adverse effects by
information dissemination and periodic random drug testing.
3. To institute other measures that address the menace of drug abuse within the
personnel of the Judiciary.
In the instant administrative matter, De Guzman never challenged the authenticity
of the Chemistry Report of the Nueva Ecija Provincial Crime Laboratory Office.
Likewise, the finding that De Guzman was found positive for use of marijuana and
shabu remains unrebutted. De Guzmans general denial that he is not a drug user
cannot prevail over this compelling evidence.
The foregoing constitutes more than substantial evidence that De Guzman was
indeed found positive for use of dangerous drugs. In Dadulo v. Court of
Appeals,[10] we held that (a)dministrative proceedings are governed by the
substantial evidence rule. Otherwise stated, a finding of guilt in an administrative
case would have to be sustained for as long as it is supported by substantial
evidence that the respondent has committed acts stated in the complaint.
Substantial evidence is more than a mere scintilla of evidence. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion, even if other minds equally reasonable might conceivably opine
otherwise.[11]

This Court is a temple of justice. Its basic duty and responsibility is the dispensation
of justice. As dispensers of justice, all members and employees of the Judiciary are
expected to adhere strictly to the laws of the land, one of which is Republic Act No.
9165[12] which prohibits the use of dangerous drugs.[13]
The Court has adhered to the policy of safeguarding the welfare, efficiency, and
well-being not only of all the court personnel, but also that of the general public
whom it serves. The Court will not allow its front-line representatives, like De
Guzman, to put at risk the integrity of the whole judiciary. As we held in Baron v.
Anacan,[14] (t)he image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat. Thus, the conduct of a person
serving the judiciary must, at all times, be characterized by propriety and decorum
and above all else, be above suspicion so as to earn and keep the respect of the
public for the judiciary. The Court would never countenance any conduct, act or
omission on the part of all those in the administration of justice, which will violate
the norm of public accountability and diminish or even just tend to diminish the
faith of the people in the judiciary.
Article XI of the Constitution mandates that:
SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people and serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest
lives.
De Guzmans use of prohibited drugs has greatly affected his efficiency in the
performance of his functions. De Guzman did not refute the observation of his
superior, Judge Sta. Romana, that as a criminal docket court clerk, he (De Guzman)
was totally inept and incompetent. Hence, to get across his displeasure and
dissatisfaction with his job performance, Judge Sta. Romana gave De Guzman an
unsatisfactory rating.
Moreover, De Guzmans efficiency as a custodian of court records is also totally
wanting. As early as May 12, 2004, Judge Sta. Romana issued a Memorandum
addressed to De Guzman relative to the sleeping cases inside the latters drawer. It
would appear that several cases have not been proceeded upon because De
Guzman hid the records of the same inside his drawer. The text of the said
Memorandum reads:
224
An examination of the records found in your drawer reveal that the following cases
have not moved because you have not brought the same to the attention of the
Presiding Judge, to wit:
1. Crim. Case No. 1849-C, PP v. Ruben Villanueva Order of transmittal to the Office
of the Provincial Prosecutor of Nueva Ecija dated August 6, 2003 to resolve the
Motion for Reconsideration.
Resolution of the Provincial Prosecutor dated September 23, 2003 denying the
Motion for Reconsideration and transmitting the records to the RTC, Br. 31,
Guimba, Nueva Ecija received by this court on September 24, 2003;
2. Crim. Case No. 1993-G, PP vs. JOJO SUPNET Information dated October 14, 2002
received by this Court on November 18, 2002;
3.Crim. Case No. 2013-G, PP vs. Brgy. Capt. BAYANI CAMIS Information dated
September 23, 2002 received by this court on January 24, 2003;
4.Crim. Case No. 2007-G, PP vs. Armando Marcos Information dated June 23, 2002;
Records received on January 2, 2003.
The Presiding Judge caused the issuance of finding of probable causes and the
corresponding Warrants of Arrest. You are hereby ordered to assist the OIC/Clerk
of Court in sending forthwith the Warrants of Arrest to the proper agencies for
implementation.
In the same vein, Reyes also put forth the absurd behavioral manifestations of De
Guzman. According to Reyes, Judge Sta. Romana would always remind De Guzman
to prepare and transmit the complete records of the appealed cases. However, De
Guzman would only make empty assurances to perform his task. Notwithstanding
the reminders of his superiors, De Guzman would still fail to transmit the records.
Instead, he would report the next day and jubilantly declare that the problem has
been solved at last.
In fine, we agree with the OCA that by his repeated and contumacious conduct of
disrespecting the Courts directives, De Guzman is guilty of gross misconduct and
has already forfeited his privilege of being an employee of the Court. Likewise, we
can no longer countenance his manifestations of queer behavior, bordering on

absurd, irrational and irresponsible, because it has greatly affected his job
performance and efficiency. By using prohibited drugs, and being a front-line
representative of the Judiciary, De Guzman has exposed to risk the very institution
which he serves. It is only by weeding out the likes of De Guzman from the ranks
that we would be able to preserve the integrity of this institution.
Two justices disagree with the majority opinion. They opine that the Courts action
in this case contravenes an express public policy, i.e., imprisonment for drug
dealers and pushers, rehabilitation for their victims. They also posit that De
Guzmans failure to properly perform his duties and promptly respond to Court
orders precisely springs from his drug addiction that requires rehabilitation. Finally,
they state that the Courts real strength is not in its righteousness but in its
willingness to understand that men are not perfect and that there is a time to
punish and a time to give a chance for contrition and change.
However, the legislative policy as embodied in Republic Act No. 9165 in deterring
dangerous drug use by resort to sustainable programs of rehabilitation and
treatment must be considered in light of this Courts constitutional power of
administrative supervision over courts and court personnel. The legislative power
imposing policies through laws is not unlimited and is subject to the substantive
and constitutional limitations that set parameters both in the exercise of the power
itself and the allowable subjects of legislation.[15] As such, it cannot limit the
Courts power to impose disciplinary actions against erring justices, judges and
court personnel. Neither should such policy be used to restrict the Courts power to
preserve and maintain the Judiciarys honor, dignity and integrity and public
confidence that can only be achieved by imposing strict and rigid standards of
decency and propriety governing the conduct of justices, judges and court
employees.
Likewise, we cannot subscribe to the idea that De Guzmans irrational behavior
stems solely from his being a drug user. Such queer behavior can be attributed to
several factors. However, it cannot by any measure be categorically stated at this
point that it can be attributed solely to his being a drug user.
Finally, it must be emphasized at this juncture that De Guzmans dismissal is not
grounded only on his being a drug user. His outright dismissal from the service is
likewise anchored on his contumacious and repeated acts of not heeding the
directives of this Court. As we have already stated, such attitude betrays not only a
225
recalcitrant streak of character, but also disrespect for the lawful orders and
directives of the Court.
ACCORDINGLY, Rene de Guzman, Clerk, Regional Trial Court of Guimba, Nueva
Ecija, Branch 31, is hereby DISMISSED from the service with forfeiture of all
retirement benefits, except accrued leave credits, and disqualification from
reinstatement or appointment to any public office, including government-owned or
controlled corporations.
SO ORDERED.
OFFICE OF THE COURT ADMINISTRATOR VS. REYES, 621 SCRA 511 (2010).
OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs.
FLORENCIO M. REYES, OFFICER-IN-CHARGE, and RENE DE GUZMAN, Respondents.
A.M. No. P-08-2535. June 23, 2010.
FACTS:
Judge Sta. Romana of Branch 31 of the Regional Trial Court (RTC) of Guimba, Nueva
Ecija, requested the Nueva Ecija Provincial Crime Laboratory Office (CLO) to
conduct a drug test on Rene De Guzman, clerk of his court, for the latter’s alleged
irresponsibility and queer behavior. The results from the CLO yielded a positive
result of drug use on the part of De Guzman.
Thereafter, a complaint for gross misconduct filed against him, where it was
alleged that
 Judge Romana would often have to remind him about the transmittal of
records of appealed cases for more than a dozen times as he was in
charge of the preparation and transmission of the records on appeal
 De Guzman would just dismiss the subject in ridicule and with the empty
assurance that the task is as good as finished
 He did not transmit the records of PP v. Mangan
 The following matters what was probably prompted Judge Sta. Romana
to have De Guzman undergo a drug test
On September 2007, the Court required De Guzman to comment on the charge of
misconduct relative to the alleged use of prohibited drugs. Notwithstanding, De
Guzman failed to file his comment. De Guzman complied with the Court’s directive
only on March, 2008 claiming that he failed to comply because he lost a copy of the
resolution. De Guzman’s comment was referred to the Office of the Court

Administrator (OCA) for evaluation, to which the OCA submitted a observed by the OCA, De Guzman has shown his propensity to defy the
recommendation of De Guzman’s dismissal from the service.
ISSUE: Whether de Guzman should be dismissed from service
RULING:
We adopt the findings and recommendation of the OCA.
MINOR ISSUES (in lower font size, not related to separation of powers)
We note that De Guzman is adept at ignoring the Court’s directives.
REASON of the COURT: In his letter-explanation in the administrative
matter relative to the delay in the transmittal of the records of Criminal
Case No. 1144-G, he requested for a period of 10 days or until November
15, 2004 within which to submit the Affidavit of George Caoile (Caoile),
the retired Stenographer, as part of his comment. However, despite the
lapse of five months, De Guzman still failed to submit Caoile’s affidavit.
Subsequently, we furnished him with a copy of the April 18, 2005
Resolution wherein we mentioned that we are awaiting his submission of
the affidavit of Caoile which shall be considered as part of his (De
Guzman’s) comment.
Nine months from the time he undertook to submit the affidavit of
Caoile, De Guzman has yet to comply with his undertaking. Thus, on
August 10, 2005, we required De Guzman to show cause why he should
not be disciplinarily dealt with or held in contempt for such failure.
Unfortunately, De Guzman merely ignored our show cause order. Finally,
on January 24, 2007, or after the lapse of one year and two months, De
Guzman submitted the affidavit of Caoile. Similarly, we also required De
Guzman to file his comment within 10 days from notice as regards the
allegation that he was using prohibited drugs. However, he again ignored
our directive as contained in the Resolution of September 17, 2007. Thus,
on January 23, 2008, we required him to show cause why he should not
be held in contempt for such failure. By way of explanation, De Guzman
submitted a letter dated March 12, 2008 wherein he claimed that he
failed to file his comment on the charge of misconduct because he
allegedly lost his copy of the said September 17, 2007 Resolution.Finally,
on August 27, 2008, we required De Guzman to manifest whether he is
willing to submit the case for resolution based on the pleadings
submitted. As before, he failed to comply with the same. As correctly
226
directives of this Court.
De Guzman’s use of prohibited drugs has greatly affected his efficiency in the
performance of his functions. De Guzman did not refute the observation of his
superior, Judge Sta. Romana, that as a criminal docket court clerk, he (De Guzman)
was totally inept and incompetent. Hence, to get across his displeasure and
dissatisfaction with his job performance, Judge Sta. Romana gave De Guzman an
unsatisfactory rating. Moreover, De Guzman’s efficiency as a custodian of court
records is also totally wanting.
In the same vein, Reyes also put forth the absurd behavioral manifestations of De
Guzman. According to Reyes, Judge Sta. Romana would always remind De Guzman
to prepare and transmit the complete records of the appealed cases. However, De
Guzman would only make empty assurances to perform his task. Notwithstanding
the reminders of his superiors, De Guzman would still fail to transmit the records.
Instead, he would report the next day and jubilantly declare that the problem has
been solved at last.
In fine, we agree with the OCA that by his repeated and contumacious conduct of
disrespecting the Court’sdirectives, De Guzman is guilty of gross misconduct and
has already forfeited his privilege of being an employee of the Court. Likewise, we
can no longer countenance his manifestations of queer behavior, bordering on
absurd, irrational and irresponsible, because it has greatly affected his job
performance and efficiency. By using prohibited drugs, and being a front-line
representative of the Judiciary, De Guzman has exposed to risk the very institution
which he serves. It is only by weeding out the likes of De Guzman from the ranks
that we would be able to preserve the integrity of this institution.
MAJOR ISSUE (related to separation of powers):
Two justices disagree with the majority opinion. They opine that the Court’s action
in this case contravenes anexpress public policy, i.e., "imprisonment for drug
dealers and pushers, rehabilitation for their victims." They alsoposit that De
Guzman’s failure to properly perform his duties and promptly respond to Court
orders precisely springsfrom his drug addiction that requires rehabilitation. Finally,
they state that the Court’s real strength is not in itsrighteousness but in its
willingness to understand that men are not perfect and that there is a time to
punish and atime to give a chance for contrition and change.
However, the legislative policy as embodied in Republic Act No. 9165 in deterring
dangerous drug use by resort to sustainable programs of rehabilitation and
treatment must be considered in light of this Court’s constitutional power of
 227

administrative supervision over courts and court personnel. The legislative power
imposing policies through laws is not unlimited and is subject to the substantive
and constitutional limitations that set parameters both in the exercise of the power
itself and the allowable subjects of legislation.

As such, it cannot limit the Court’s power to impose disciplinary actions against
erring justices, judges and court personnel. Neither should such policy be used to
restrict the Court’s power to preserve and maintain the Judiciary’s honor, dignity
and integrity and public confidence that can only be achieved by imposing strict
and rigid standards of decency and propriety governing the conduct of justices,
judges and court employees. Likewise, we cannot subscribe to the idea that De
Guzman’s irrational behavior stems solely from his being a drug user. Such queer
behavior can be attributed to several factors. However, it cannot by any measure
be categorically stated at this point that it can be attributed solely to his being a
drug user. Finally, it must be emphasized at this juncture that De Guzman’s
dismissal is not grounded only on his being a drug user. His outright dismissal from
the service is likewise anchored on his contumacious and repeated acts of not
heeding the directives of this Court. As we have already stated, such attitude
betrays not only a recalcitrant streak of character, but also disrespect for the lawful
orders and directives of the Court.

SECOND DIVISION
A.M. No. SCC-13-18-J July 1, 2015
BAGUAN M. MAMISCAL, Complainant,
vs.
CLERK OF COURT MACALINOG S. ABDULLAH, SHARI'A CIRCUIT COURT, MARAWI
CITY, Respondent.
DECISION
MENDOZA, J.:
This resolves the complaint1 of Baguan M. Mamiscal (Mamiscal) against respondent
Macalinog S. Abdullah (Abdullah), Clerk of Court, Shari'a Circuit Court, Marawi City,
for partiality, violation of due process, dishonesty, and conduct unbecoming of a
court employee. Originally, the complaint also charged Judge Aboali J. Cali (Judge
Cali), Presiding Judge, Shari'a Circuit Court, Marawi City, for his participation in the
subject controversy. On January 9, 2013, the Court resolved to dismiss the charges
against Judge Cali for lack of merit.2
The Facts
In his complaint, Mamiscal averred that on September 26, 2010, he and his wife,
Adelaidah Lomondot (Adelaidah) had a heated argument. In a fit of anger,
Mamiscal decided to divorce his wife by repudiating her (talaq).3 The repudiation
was embodied in an agreement4 (kapasadan) signed by Mamiscal and Adelaidah.
The next day, Adelaidah left their conjugal dwelling in Iligan City and went back to
her family’s home in Marinaut, Marawi City. A few days later, during the obligatory
period of waiting (‘iddah),5 Mamiscal had a change of heart and decided to make
peace with his wife. For the purpose, he sent their common relatives to see
Adelaidah and make peace with her on his behalf.6
Almost five (5) months later, however, on February 23, 2011, Adelaidah filed7 the
Certificate of Divorce (COD),8dated September 26, 2010, with the office of Abdullah
for registration. Although unsigned, the certificate, purportedly executed by
Mamiscal, certified that he had pronounced talaq in the presence of two (2)
witnesses and in accordance with Islamic Law for the purpose of effecting divorce
228
from Adelaidah. A notation on the certificate stated that it was being filed together
with the kapasadan.
On the same day, Abdullah, in the exercise of his duty as both Clerk of Court and
Circuit Civil Registrar,9 issued the Invitation10 notifying the couple and their
representatives to appear before the Shari’a Circuit Court on February 28, 2011, in
order to constitute the Agama Arbitration Council (AAC)that would explore the
possibility of reconciling the spouses.11
On March 24, 2011, Abdullah issued the Certificate of Registration of Divorce12
(CRD)finalizing the divorce between Mamiscal and Adelaidah.
Mamiscal sought the revocation of the CRD, questioning the validity of the
kapasadan on which the CRD was based. In his motion, Mamiscal contended that
the kapasadan was invalid considering that he did not prepare the same.
Moreover, there wereno witnesses to its execution. He claimed that he only signed
the kapasadan because of Adelaidah’s threats.
Mamiscal also questioned the validity of the COD, denying that he had executed
and filed the same before the office of Abdullah. Insisting that he never really
intended to divorce his wife, Mamiscal pointed out the fact that on December 13,
2010, before the expiration of the ‘iddah, he wrote his wife13 to inform her that he
was revoking the repudiation he made on September 26, 2010 and the kapasadan
they entered into on the same day because he did it on the "spur of the
moment."14
For Mamiscal, the CRD should be declared invalid considering that: a) he was
deprived of due process because the AAC, before which he and his children were
supposed to express their sentiments regarding the divorce, was yet to be
constituted; b) three days before the issuance of the CRD, Professor Mustafa
Lomala M. Dimaro, appeared before Judge Cali to discuss the possibility of
reconciliation between the parties; and c) their children, Adelah Rima and Naim
Mamiscal, prayed that the trial court advise their mother not to proceed with the
divorce.15 In addition to the revocation of the CRD, Mamiscal also prayed that
Abdullah order the reconvening of the AAC and, thereafter, grant the restoration of
his marital rights with Adelaidah.
On April 20, 2011, Abdullah denied Mamiscal’s motion.16 In sustaining the divorce
between Mamiscal and Abdullah, Abdullah opined that it was simply his ministerial
duty to receive the COD and the attached kapasadan filed by Adelaidah. Abdullah

also noted that when the AAC was convened during the February 28, 2010 hearing,
only Mamiscal and his representatives appeared. Considering the fact that
Adelaidah manifested her opposition in writing to any reconciliation with her
husband and the fact that the 90-day period of ‘iddah had already lapsed, Abdullah
ruled that any move to reconstitute the AAC would have been futile because the
divorce between Mamiscal and his wife had already become final and irrevocable.
Contending that the issuance of the CRD was tainted with irregularity, Mamiscal
comes to this Court, through the subject complaint, charging Abdullah with
partiality, violation of due process, dishonesty, and conduct unbecoming of a court
employee.
The Charge
In his complaint, Mamiscal averred that Abdullah should not have entertained or
acted upon the COD and the kapasadan filed by Adelaidah. He contended that
under the Code of Muslim Personal Laws, a divorce under talaq could only be filed
and registered by the male spouse, considering that female Muslims could do so
only if the divorce was through tafwid.17 Moreover, Mamiscal alleged that Abdullah
"fabricated and twisted the facts"18 when he declared that only Mamiscal and his
representative appeared when the AAC was convened. Mamiscal insisted that
Adelaidah and her relatives were also present during the hearing of February 28,
2010, and that the AAC was never convened because the parties agreed to reset
the proceedings so that they could explore the possibility of reconciling the
differences between them. Notwithstanding the ongoing mediation proceedings,
Abdullah proceeded to act on the COD and finalized the divorce by issuing the CRD.
Finally, it was averred that Abdullah violated the Shari’a rules of procedure when
he initially refused to receive Mamiscal’s motion for reconsideration when it was
first filed. Mamiscal also argued that Abdullah should not have considered the
opposition of Adelaidah when he denied his attempt to seek reconsideration
because he was never furnished a copy of Adelaidah’s opposition.
Abdullah’s Comment
In his comment,19 Abdullah countered that although he had the authority to
process the registration of the divorce as court registrar, he could not be held
responsible for the contents of the COD and the kapasadan because his functions
were only ministerial. Nevertheless, Abdullah asserted that the divorce between
Mamiscal and Adelaidah had already attained finality, not only because of the lapse
229
of the required ‘iddah, but also because the kapasadan and Adelaidah’s opposition
both proved that there could be no reconciliation between the spouses. Abdullah
also discounted any impropriety for processing the unsigned COD, arguing that
since it was accompanied by the kasapadan which bore the signature of Mamiscal
and his declaration that he was divorcing his wife by talaq– there was nothing
wrong with Adelaidah filing it with his office. Moreover, with the lapse of the
‘iddah, Abdullah argued that the COD had remained to be nothing more than a
formality for the purpose of registering the divorce with the National Statistics
Office (NSO)and its issuance using the NSO security paper.
As to the allegations pertaining to the February 28, 2010 hearing, Abdullah stated
that he only conducted the same because it was required under the Muslim
Personal Code. Abdullah explained that he did not convene the ACC anymore not
only because Adelaidah or her representatives were not present, but also because
the divorcing couple’s own children wrote to him opposing the convening of the
council.
As to Mamiscal’s contention that he already revoked his repudiation of his wife,
Abdullah pointed out that his office was not informed of any revocation of the
divorce. According to Abdullah, if Mamiscal had indeed revoked his repudiation, he
should have complied with the provisions of Rule II (1)(2) of NSO Administrative
Order No. 1, series of 2001, which required the husband to file five (5) copies of his
sworn statement attesting to the fact of revocation, together with the written
consent of his wife.
In its report,20 the Office of the Court Administrator (OCA)found Abdullah guilty of
gross ignorance of the law and recommended that he be fined in the amount of
10,000.00 with a stern warning that a repetition of the same offense shall be dealt
with severely.
On January 30, 2014, Abdullah filed a motion,21 praying for the early resolution of
the complaint filed against him. Reiterating his plea for the dismissal of the said
complaint, Abdullah claimed that he was due for compulsory retirement on June 5,
2014.
The Court’s Ruling
At the outset, it must first be pointed out that while it may seem to be a related
issue, the validity of the divorce between Mamiscal and Adelaidah is not in issue
here. Whether or not Mamiscal had validly effected a divorce from his wife is a

matter that must first be addressed by the Shari’a Circuit Court which, under the
Code of Muslim Personal Laws of the Philippines (Muslim Code),22 enjoys exclusive
original jurisdiction to resolve disputes relating to divorce.
Thus, Article 155 of the Muslim Code provides:
Article 155. Jurisdiction. The Shari'a Circuit Courts shall have exclusive original
jurisdiction over;
(1) All cases involving offenses defined and punished under this Code.
(2) All civil actions and proceedings between parties who are Muslims or
have been married in accordance with Article 13 involving disputes
relating to:
(a) Marriage;
(b) Divorce recognized under this Code;
(c) Betrothal or breach of contract to marry;
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon divorce;
(f) Maintenance and support, and consolatory gifts, (mut'a);
and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to communal properties.
[Emphases Supplied]
Consequently, in resolving the subject complaint, the Court shall confine itself to
the sole issue of whether or not Abdullah should be held administratively liable for
his actions in connection with the registration of the divorce between Mamiscal
and Adelaidah. A priori to the resolution of the foregoing issue is the question of
230
whether this Court has jurisdiction to impose administrative sanction against
Abdullah for his acts.
The Court rules in the negative.
The civil registrar is the person charged by law for the recording of vital events and
other documents affecting the civil status of persons. The Civil Registry Law
embraces all acts of civil life affecting the status of persons and is applicable to all
persons residing in the Philippines.23
To ensure the proper registration of all facets of the civil life of Muslim Filipinos
throughout the country, Article 81 of the Muslim Code provides:
Article 81. District Registrar. The Clerk of Court of the Shari' a District Court shall, in
addition to his regular functions, act as District Registrar of Muslim Marriages,
Divorces, Revocations of Divorces, and Conversions within the territorial
jurisdiction of said court. The Clerk of Court of the Shari'a Circuit Court shall act as
Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and
Conversions within his jurisdiction.
In view of the above-quoted provision, it becomes apparent that the Clerk of Court
of the Shari'a Circuit Court enjoys the privilege of wearing two hats: first, as Clerk of
Court of the Shari'a Circuit Court, and second, as Circuit Registrar within his
territorial jurisdiction. Although the Constitution vests the Court with the power of
administrative supervision over all courts and its personnel,24 this power must be
taken with due regard to other prevailing laws.
Thus, Article 185 of the Muslim Code provides:
Article 185. Neglect of duty by registrars. Any district registrar or circuit registrar
who fails to perform properly his duties in accordance with this Code shall be
penalized in accordance with Section 18 of Act 3753.
Commonwealth Act (C.A.) No. 375325 is the primary law that governs the registry
of civil status of persons. To ensure that civil registrars perform their duties under
the law, Section 18 of C.A. No. 3753 provides:
Section 18. Neglect of duty with reference to the provisions of this Act. – Any local
registrar who fails to properly perform his duties in accordance with the provisions
of this Act and of the regulations issued hereunder, shall be punished for the first

offense, by an administrative fine in a sum equal to his salary for not less than
fifteen days nor more than three months, and for a second or repeated offense, by
removal from the service.
The same Act provides:
Section 2. Civil Registrar-General his duties and powers. – The director of the
National Library shall be Civil Registrar-General and shall enforce the provisions of
this Act. The Director of the National Library, in his capacity as Civil Registrar-
General, is hereby authorized to prepare and issue, with the approval of the
Secretary of Justice, regulations for carrying out the purposes of this Act, and to
prepare and order printed the necessary forms for its proper compliance. In the
exercise of his functions as Civil Registrar-General, the Director of the National
Library shall have the power to give orders and instructions to the local Civil
registrars with reference to the performance of their duties as such. It shall be the
duty of the Director of the National Library to report any violation of the provisions
of this Act and all irregularities, negligence or incompetency on the part of the
officers designated as local civil registrars to the (Chief of the Executive Bureau or
the Director of the Non-Christian Tribes) Secretary of the Interior, as the case may
be, who shall take the proper disciplinary action against the offenders.
[Emphasis and Underscoring Supplied]
Prescinding from the foregoing, it becomes apparent that this Court does not have
jurisdiction to impose the proper disciplinary action against civil registrars. While
he is undoubtedly a member of the Judiciary as Clerk of Court of the Shari'a Circuit
Court, a review of the subject complaint reveals that Mamiscal seeks to hold
Abdullah liable for registering the divorce and issuing the CRD pursuant to his
duties as Circuit Registrar of Muslim divorces. It has been said that the test of
jurisdiction is the nature of the offense and not the personality of the
offender.26 The fact that the complaint charges Abdullah for "conduct unbecoming
of a court employee" is of no moment. Well-settled is the rule that what controls is
not the designation of the offense but the actual facts recited in the complaint.
Verily, unless jurisdiction has been conferred by some legislative act, no court or
tribunal can act on a matter submitted to it.27
It bears to stress at this point that this Court can resolve the foregoing jurisdictional
issue even if the matter of jurisdiction was never raised by any of the parties.
Jurisprudence is replete with rulings that jurisdiction, or the power and authority of
a court to hear, try and decide a case must first be acquired by the court or an
adjudicative body over the subject matter and the parties in order to have
231
authority to dispose of the case on the merits.28 Elementary is the distinction
between jurisdiction over the subject matter and jurisdiction over the person.
Jurisdiction over the subject matter is conferred by the Constitution or by law. In
contrast, jurisdiction over the person is acquired by the court by virtue of the
party's voluntary submission to the authority of the court or through the exercise
of its coercive processes. Jurisdiction over the person is waivable unlike jurisdiction
over the subject matter which is neither subject to agreement nor conferred by
consent of the parties.29
Having settled the foregoing issue, the following question now confronts the Court:
Who, among the various agencies and instrumentalities of the government, is
empowered with administrative supervisory powers in order to impose disciplinary
sanctions against erring civil registrars?
On this score, a recap of the legislative history surrounding our system of civil
registration is in order.
The system of civil registration was first established in the Philippines by the
revolutionary government on June18, 1898 or barely six days after the declaration
of the country’s independence from Spain on June 12, 1898. Originally, the system
was decentralized in the sense that civil registration was purely a local government
responsibility. It was only on February 27, 1931, when C.A. No. 375330 took effect
and centralized the system of civil registration in the country. Under this law, the
director of the National Library was made responsible as the Civil Registrar-General
to exercise technical supervision and ensure the proper establishment and
maintenance of our civil registry system.
Then, following C.A. No. 591,31 the duties exercised by the director of National
Library with regard to matters concerning the system of civil registration were
transferred to the Bureau of Census and Statistics. This bureau subsequently
became the NSO,32 whose Administrator concurrently served as the Civil Registrar-
General.33 At present, the National Statistician is empowered by Republic Act (R.A.)
No. 10625, as Civil Registrar-General to exercise technical supervision of civil
registrars.34
Due to the need to address the cultural peculiarities practiced by our Muslim
brethren, however, Congress saw the need to designate the Clerk of Court of the
Shari'a Circuit Court to act as the Circuit Registrar of Muslim marriages, divorces,
revocations of divorces, and conversions to Islam within his jurisdiction. As earlier
cited, Article 181 of the Muslim Code provides that: The Clerk of Court of the

Shari'a Circuit Court shall act as Circuit Registrar of Muslim Marriages, Divorces,
Revocations of Divorces, and Conversions within his jurisdiction.
In order to ensure that Circuit Registrars remain faithful to their duties, Article 82
of the Muslim Code tasks the Clerks of Court of the Shari'a District Court to act as
District Registrars and exercise technical supervision over Circuit Registrars by
requiring them to keep a proper recording of all matters pertaining to the personal
lives of Muslims. Thus:
Article 82. Duties of District Registrar. Every District Registrar shall exercise
supervision over Circuit Registrars in every Shari'a District. He shall, in addition to
an entry book, keep and bind copies of certificates of Marriage, Divorce,
Revocation of Divorce, and Conversion sent to him by the Circuit Registrars in
separate general registers. He shall send copies in accordance with Act. No. 3753,
as amended, to the office of the Civil Registrar-General.
All these notwithstanding, the power of administrative supervision over civil
registrars remains with the National Government.1âwphi1 As Section 2 of CA No.
3753 provides:
Section 2. Civil Registrar-General his duties and powers. – The director of the
National Library shall be Civil Registrar-General and shall enforce the provisions of
this Act. The Director of the National Library, in his capacity as Civil Registrar-
General, is hereby authorized to prepare and issue, with the approval of the
Secretary of Justice, regulations for carrying out the purposes of this Act, and to
prepare and order printed the necessary forms for its proper compliance. In the
exercise of his functions as Civil Registrar-General, the Director of the National
Library shall have the power to give orders and instructions to the local Civil
registrars with reference to the performance of their duties as such. It shall be the
duty of the Director of the National Library to report any violation of the provisions
of this Act and all irregularities, negligence or incompetency on the part of the
officers designated as local civil registrars to the (Chief of the Executive Bureau or
the Director of the Non-Christian Tribes) Secretary of the Interior, as the case may
be, who shall take the proper disciplinary action against the offenders.
It was only with the advent of the Local Government Code that the power of
administrative supervision over civil registrars was devolved to the municipal and
city mayors of the respective local government units. Under the "faithful execution
clause" embodied in Section 455(b)(1)(x)35 and Section 444(b)(1)(x)36 of the Local
Government Code, in relation to Section 47937 under Article IX, Title V38 of the
same Code, the municipal and city mayors of the respective local government
232
units, in addition to their power to appoint city or municipal civil registrars are also
given ample authority to exercise administrative supervision over civil registrars.
Thus, when Administrative Order No. 1, Series of 1993 of the Office of the Civil
Registrar-General (OCRG)was passed to implement CA No. 3753 it was declared:
Rule 1. Duties and Powers of the Civil Registrar-General. - The Civil Registrar-
General shall have the following duties and powers:
a) To enforce the provisions of Act No. 3753;
b) To prepare and issue regulations for carrying out the purposes of Act No. 3753
and other laws relative to civil registration, and to prepare and order printed the
necessary forms for its proper compliance;
c) To give orders and instructions to the city/municipal civil registrars with
reference to the performance of their duties as such; and
d) To report any violation of the provisions of Act No. 3753 and other laws on civil
registration, and all irregularities, negligence or incompetency of city/municipal
civil registrar to the concerned mayor who shall take the proper disciplinary action
against the offender.
This authority of the Mayor to exercise administrative jurisdiction over Circuit
Registrars was also recognized generally, under Section 47(2) of the Administrative
Code of 1987,39 and specifically, under Rule 11 of Administrative Order No. 2,
Series of 199340 of the OCRG, and the more recent Administrative Order No. 5,
Series of 200541 of the same office, which applies specially to the registration of
acts and events concerning the civil status of Muslim Filipinos.
At this juncture, it should be remembered that the authority of the Mayor to
exercise administrative supervision over C/MCRs is not exclusive. The Civil Service
Commission (CSC), as the central personnel agency of the government, has the
power to appoint and discipline its officials and employees and to hear and decide
administrative cases instituted by or brought before it directly or on
appeal.42 Under Section 9 of the Revised Uniform Rules on Administrative Cases in
the Civil Service, the CSC is granted original concurrent jurisdiction over
administrative cases. Thus:
Section 9. Jurisdiction of Heads of Agencies. - The Secretaries and heads of
agencies, and other instrumentalities, provinces, cities and municipalities shall have

original concurrent jurisdiction with the Commission over their respective officers
and employees. x x x
Consequently, it behooves the Court to also forward the subject complaint to the
Office of the Mayor, Marawi City and to the CSC for appropriate action.
WHEREFORE, the administrative matter against Macalinog S. Abdullah, Clerk of
Court II, Shari' a Circuit Court, Marawi City, for partiality, violation of due process,
dishonesty, and conduct unbecoming a court employee is DISMISSED for lack of
jurisdiction, without prejudice. The complaint of Baguan M. Mamiscal against
Macalinog S. Abdullah is hereby REFERRED to the Office of the Mayor, Marawi City
and the Civil Service Commission for appropriate action.
SO ORDERED.
BAGUAN M. MAMISCAL vs. CLERK OF COURT MACALINOG S. ABDULLAH, SHARI'A
CIRCUIT COURT, MARAWI CITY
A.M. No. SCC-13-18-J July 1, 2015
JOVITO CANCERAN vs. PEOPLE OF THE PHILIPPINES
G.R. No. 206442 July 1, 2015 (Criminal Law/ Remedial)
Petitioner JovitoCanceran, together with Frederick Vequizo and Marcial Diaz, Jr.,
was charged with "Frustrated Theft” for stealing 14 cartons of Ponds White Beauty
Cream valued at P28,627,20, belonging to Ororama Mega Center. The prosecution
presented DamalitoOmpoc,a security guard; and William Michael N. Arcenio, the
Customer Relation Officer of Ororama,as its witnessesestablished that on or about
October 6, 2002, Ompoc saw Canceran approach one of the counters in Ororama.
Canceran was pushing a cart which contained two boxes of Magic Flakes for which
he paid P1,423.00. Upon inspection by Ompoc and the packer, they found out that
the contents of the two boxes were not Magic Flakes biscuits, but Ponds White
Beauty Cream.
In his defense, Canceranwas in Ororama to buy medicine for his wife when a male
person of around 20 years of age requested him to pay for the items in his cart at
the cashier and gave him P1,440.00 for payment of two boxes labelled Magic
Flakes. He denied knowing the contents of the said two boxes. When he went out
of Ororama to take a jeepney, three persons ran after him, and he was caught. He
also claimed that an earlier Information for theft was already filed on October
9,2002 which was eventually dismissed. In January 2003, a second Information was
233
filed for the same offense over the same incident and became the subject of the
present case.
The Regional Trial Court found Canceran guilty beyond reasonable doubt of
consummated Theft in line with the ruling of the Court in Valenzuela v. People that
under Article 308 of the Revised Penal Code,there is no crime of "Frustrated Theft."
Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy
for the first time. The Court of Appeals held that there could be no double jeopardy
because he never entered a valid plea and so the first jeopardy never attached.The
CA also debunked Canceran’s contention that there was no taking because he
merely pushed the cart loaded with goods to the cashier’s booth for payment and
stopped there. The appellate court held that unlawful taking was deemed complete
from the moment the offender gained possession of the thing, even if he had no
opportunity to dispose of the same.
Issues:
1. Whether Canceran should be acquitted in the crime of theft as it
was not charged in the information.
2. Whether there was double jeopardy.
Held:
I. Yes. No less than the Constitution guarantees the right of every person
accused in a criminal prosecution to be informed of the nature and cause of
accusation against him. It is fundamental that every element of which the offense
is composed must be alleged in the complaint or information. The main purpose of
requiring the various elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense.
Under Article 308 of the RPC, the essential elements of theft are (1) the taking of
personal property; (2) the property belongs to another; (3) the taking away was
done with intent of gain; (4) the taking away was done without the consent of the
owner; and (5) the taking away is accomplished without violence or intimidation
against person or force upon things. "Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all."
"It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of ‘taking’ itself, in that there could be no
true taking until the actor obtains such degree of control over the stolen item. But

even if this were correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all the acts of
execution have not been completed, the "taking not having been accomplished."
A careful reading of the allegations in the Information would show that Canceran
was charged with "Frustrated Theft" only.
As stated earlier, there is no crime of Frustrated Theft. The Information can never
be read to charge Canceran of consummated Theft because the indictment itself
stated that the crime was never produced. Instead, the Information should be
construed to mean that Canceran was being charged with theft in its attempted
stage only. Necessarily, Canceran may only be convicted of the lesser crime of
Attempted Theft.
"[A]n accused cannot be convicted of a higher offense than that with which he was
charged in the complaint or information and on which he was tried. It matters not
how conclusive and convincing the evidence of guilt may be, an accused cannot be
convicted in the courts of any offense, unless it is charged in the complaint or
information on which he is tried, or necessarily included therein. He has a right to
be informed as to the nature of the offense with which he is charged before he is
put on trial, and to convict him of an offense higher than that charged in the
complaint or information on which he is tried would be an unauthorized denial of
that right." Indeed, an accused cannot be convicted of a crime, even if duly proven,
unless it is alleged or necessarily included in the information filed against him. An
offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter.
The crime of theft in its consummated stage undoubtedly includes the crime in its
attempted stage. In this case, although the evidence presented during the trial
prove the crime of consummated Theft, he could be convicted of Attempted Theft
only. Regardless of the overwhelming evidence to convict him for consummated
Theft, because the Information did not charge him with consummated Theft, the
Court cannot do so as the same would violate his right to be informed of the nature
and cause of the allegations against him, as he so protests.
The Court is not unmindful of the rule that "the real nature of the criminal charge is
determined, not from the caption or preamble of the information nor from the
specification of the law alleged to have been violated – these being conclusions of
law – but by the actual recital of facts in the complaint or information." In the case
of Domingo v. Rayala, it was written:
234
What is controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated, these being
mere conclusions of law made by the prosecutor, but the description of the crime
charged and the particular facts therein recited. The acts or omissions complained
of must be alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable the
court to pronounce proper judgment. No information for a crime will be sufficient
if it does not accurately and clearly allege the elements of the crime charged. Every
element of the offense must be stated in the information. What facts and
circumstances are necessary to be included therein must be determined by
reference to the definitions and essentials of the specified crimes. The requirement
of alleging the elements of a crime in the information is to inform the accused of
the nature of the accusation against him so as to enable him to suitably prepare his
defense.
II. No. No double jeopardy when the first jeopardy never attached. No
person shall be twice put in jeopardy for punishment for the same offense. The rule
of double jeopardy has a settled meaning in this jurisdiction. It means that when a
person is charged with an offense and the case is terminated either by acquittal or
conviction or in any other manner without the consent of the accused, the latter
cannot again be charged with the same or identical offense. This principle is
founded upon the law of reason, justice and conscience.
To raise the defense of double jeopardy, three requisites must be present: (1) a
first jeopardy must have attached prior to the second; (2) the first jeopardy must
have been validly terminated; and (3) the second jeopardy must be for the same
offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment,
(b) before a competent court, (c) after arraignment, (d) a valid plea having been
entered; and (e) the case was dismissed or otherwise terminated without the
express consent of the accused.
Here, the CA correctly observed that Canceran never raised the issue of double
jeopardy before the RTC. Even assuming that he was able to raise the issue of
double jeopardy earlier, the same must still fail because legal jeopardy did not
attach. First, he never entered a valid plea. He himself admitted that he was just
about to enter a plea, but the first case was dismissed even before he was able to
do so. Second, there was no unconditional dismissal of the complaint. The case was
not terminated by reason of acquittal nor conviction but simply because he posted
bail. Absent these two elements, there can be no double jeopardy.

EN BANC
G.R. No. 190259 June 7, 2011
DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-
GENERALE Petitioners,
vs.
HON. RONALDO PUNO, in his capacity as Secretary of the Department of Interior
and Local Government and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and on behalf of the President of the Philippines,
ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units operating in the
Autonomous Region in Muslim Mindanao (ARMM), and PHILIPPINE NATIONAL
POLICE, or any of their units operating in ARMM, Respondents.
DECISION
ABAD, J.:
On November 24, 2009, the day after the gruesome massacre of 57 men and
women, including some news reporters, then President Gloria Macapagal-Arroyo
issued Proclamation 1946,1 placing "the Provinces of Maguindanao and Sultan
Kudarat and the City of Cotabato under a state of emergency." She directed the
Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) "to
undertake such measures as may be allowed by the Constitution and by law to
prevent and suppress all incidents of lawless violence" in the named places.
Three days later or on November 27, President Arroyo also issued Administrative
Order 273 (AO 273)2"transferring" supervision of the Autonomous Region of
Muslim Mindanao (ARMM) from the Office of the President to the Department of
Interior and Local Government (DILG). But, due to issues raised over the
terminology used in AO 273, the President issued Administrative Order 273-A (AO
273-A) amending the former, by "delegating" instead of "transferring" supervision
of the ARMM to the DILG.3
Claiming that the President’s issuances encroached on the ARMM’s autonomy,
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-
Generale, all ARMM officials,4 filed this petition for prohibition under Rule 65. They
alleged that the proclamation and the orders empowered the DILG Secretary to
take over ARMM’s operations and seize the regional government’s powers, in
violation of the principle of local autonomy under Republic Act 9054 (also known as
235
the Expanded ARMM Act) and the Constitution. The President gave the DILG
Secretary the power to exercise, not merely administrative supervision, but control
over the ARMM since the latter could suspend ARMM officials and replace them.5
Petitioner ARMM officials claimed that the President had no factual basis for
declaring a state of emergency, especially in the Province of Sultan Kudarat and the
City of Cotabato, where no critical violent incidents occurred. The deployment of
troops and the taking over of the ARMM constitutes an invalid exercise of the
President’s emergency powers.6 Petitioners asked that Proclamation 1946 as well
as AOs 273 and 273-A be declared unconstitutional and that respondents DILG
Secretary, the AFP, and the PNP be enjoined from implementing them.
In its comment for the respondents,7 the Office of the Solicitor General (OSG)
insisted that the President issued Proclamation 1946, not to deprive the ARMM of
its autonomy, but to restore peace and order in subject places.8She issued the
proclamation pursuant to her "calling out" power9 as Commander-in-Chief under
the first sentence of Section 18, Article VII of the Constitution. The determination
of the need to exercise this power rests solely on her wisdom.10 She must use her
judgment based on intelligence reports and such best information as are available
to her to call out the armed forces to suppress and prevent lawless violence
wherever and whenever these reared their ugly heads.
On the other hand, the President merely delegated through AOs 273 and 273-A her
supervisory powers over the ARMM to the DILG Secretary who was her alter ego
any way. These orders did not authorize a take over of the ARMM. They did not
give him blanket authority to suspend or replace ARMM officials.11 The delegation
was necessary to facilitate the investigation of the mass killings.12 Further, the
assailed proclamation and administrative orders did not provide for the exercise of
emergency powers.13
Although normalcy has in the meantime returned to the places subject of this
petition, it might be relevant to rule on the issues raised in this petition since some
acts done pursuant to Proclamation 1946 and AOs 273 and 273-A could impact on
the administrative and criminal cases that the government subsequently filed
against those believed affected by such proclamation and orders.
The Issues Presented
The issues presented in this case are:

1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the
principle of local autonomy under Section 16, Article X of the
Constitution, and Section 1, Article V of the Expanded ARMM Organic
Act;
2. Whether or not President Arroyo invalidly exercised emergency
powers when she called out the AFP and the PNP to prevent and
suppress all incidents of lawless violence in Maguindanao, Sultan
Kudarat, and Cotabato City; and
3. Whether or not the President had factual bases for her actions.
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation and administrative
orders violate the principle of local autonomy is anchored on the allegation that,
through them, the President authorized the DILG Secretary to take over the
operations of the ARMM and assume direct governmental powers over the region.
But, in the first place, the DILG Secretary did not take over control of the powers of
the ARMM. After law enforcement agents took respondent Governor of ARMM
into custody for alleged complicity in the Maguindanao massacre, the ARMM Vice-
Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December
10, 2009 pursuant to the rule on succession found in Article VII, Section 12,14 of RA
9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM
Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor.15 In
short, the DILG Secretary did not take over the administration or operations of the
ARMM.
Two. Petitioners contend that the President unlawfully exercised emergency
powers when she ordered the deployment of AFP and PNP personnel in the places
mentioned in the proclamation.16 But such deployment is not by itself an exercise
of emergency powers as understood under Section 23 (2), Article VI of the
Constitution, which provides:
SECTION 23. x x x (2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry
236
out a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
The President did not proclaim a national emergency, only a state of emergency in
the three places mentioned. And she did not act pursuant to any law enacted by
Congress that authorized her to exercise extraordinary powers. The calling out of
the armed forces to prevent or suppress lawless violence in such places is a power
that the Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.
Three. The President’s call on the armed forces to prevent or suppress lawless
violence springs from the power vested in her under Section 18, Article VII of the
Constitution, which provides.17
SECTION 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. x x x
While it is true that the Court may inquire into the factual bases for the President’s
exercise of the above power,18 it would generally defer to her judgment on the
matter. As the Court acknowledged in Integrated Bar of the Philippines v. Hon.
Zamora,19 it is clearly to the President that the Constitution entrusts the
determination of the need for calling out the armed forces to prevent and suppress
lawless violence. Unless it is shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the President’s judgment.
Thus, the Court said:
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed
forces is not easily quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary to arrive at such judgment
might also prove unmanageable for the courts. Certain pertinent information might
be difficult to verify, or wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency situations
to avert great loss of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless violence must be
done swiftly and decisively if it were to have any effect at all. x x x.20
Here, petitioners failed to show that the declaration of a state of emergency in the
Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the
President’s exercise of the "calling out" power had no factual basis. They simply
alleged that, since not all areas under the ARMM were placed under a state of
emergency, it follows that the take over of the entire ARMM by the DILG Secretary
had no basis too.21
But, apart from the fact that there was no such take over to begin with, the OSG
also clearly explained the factual bases for the President’s decision to call out the
armed forces, as follows:
The Ampatuan and Mangudadatu clans are prominent families engaged in the
political control of Maguindanao. It is also a known fact that both families have an
arsenal of armed followers who hold elective positions in various parts of the
ARMM and the rest of Mindanao.
Considering the fact that the principal victims of the brutal bloodshed are members
of the Mangudadatu family and the main perpetrators of the brutal killings are
members and followers of the Ampatuan family, both the military and police had
to prepare for and prevent reported retaliatory actions from the Mangudadatu clan
and additional offensive measures from the Ampatuan clan.
The Ampatuan forces are estimated to be approximately two thousand four
hundred (2,400) persons, equipped with about two thousand (2,000) firearms,
about four hundred (400) of which have been accounted for. x x x
As for the Mangudadatus, they have an estimated one thousand eight hundred
(1,800) personnel, with about two hundred (200) firearms. x x x
Apart from their own personal forces, both clans have Special Civilian Auxiliary
Army (SCAA) personnel who support them: about five hundred (500) for the
Ampatuans and three hundred (300) for the Mangudadatus.
237
What could be worse than the armed clash of two warring clans and their armed
supporters, especially in light of intelligence reports on the potential involvement
of rebel armed groups (RAGs).
One RAG was reported to have planned an attack on the forces of Datu Andal
Ampatuan, Sr. to show support and sympathy for the victims. The said attack shall
worsen the age-old territorial dispute between the said RAG and the Ampatuan
family.
On the other hand, RAG faction which is based in Sultan Kudarat was reported to
have received three million pesos (₱3,000,000.00) from Datu Andal Ampatuan, Sr.
for the procurement of ammunition. The said faction is a force to reckon with
because the group is well capable of launching a series of violent activities to divert
the attention of the people and the authorities away from the multiple murder
case.
In addition, two other factions of a RAG are likely to support the Mangudadatu
family. The Cotabato-based faction has the strength of about five hundred (500)
persons and three hundred seventy-two (372) firearms while the Sultan Kudarat-
based faction has the strength of about four hundred (400) persons and three
hundred (300) firearms and was reported to be moving towards Maguindanao to
support the Mangudadatu clan in its armed fight against the Ampatuans.22
In other words, the imminence of violence and anarchy at the time the President
issued Proclamation 1946 was too grave to ignore and she had to act to prevent
further bloodshed and hostilities in the places mentioned. Progress reports also
indicated that there was movement in these places of both high-powered firearms
and armed men sympathetic to the two clans.23 Thus, to pacify the people’s fears
and stabilize the situation, the President had to take preventive action. She called
out the armed forces to control the proliferation of loose firearms and dismantle
the armed groups that continuously threatened the peace and security in the
affected places.
Notably, the present administration of President Benigno Aquino III has not
withdrawn the declaration of a state of emergency under Proclamation 1946. It has
been reported24 that the declaration would not be lifted soon because there is still
a need to disband private armies and confiscate loose firearms. Apparently, the
presence of troops in those places is still necessary to ease fear and tension among
the citizenry and prevent and suppress any violence that may still erupt, despite
the passage of more than a year from the time of the Maguindanao massacre.
 238

Since petitioners are not able to demonstrate that the proclamation of state of Issues:
emergency in the subject places and the calling out of the armed forces to prevent
or suppress lawless violence there have clearly no factual bases, the Court must 1. Whether Proclamation 1946 and AOs 273 and 273-A violate the principle of local
respect the President’s actions. autonomy under the Constitution and The Expanded ARMM Act

WHEREFORE, the petition is DISMISSED for lack of merit. 2. Whether or not President Arroyo invalidly exercised emergency powers when
she called out the AFP and the PNP to prevent and suppress all incidents of lawless
SO ORDERED. violence in Maguindanao, Sultan Kudarat, and Cotabato City

Facts: 3. Whether or not the President had factual bases for her actions

On 24 November 2009, the day after the Maguindanao Massacre, then Pres. Held:
Arroyo issued Proclamation 1946, placing “the Provinces of Maguindanao and
1. The principle of local autonomy was not violated. DILG Secretary did not take
Sultan Kudarat and the City of Cotabato under a state of emergency.” She directed
over control of the powers of the ARMM. After law enforcement agents took the
the AFP and the PNP “to undertake such measures as may be allowed by the
respondent Governor of ARMM into custody for alleged complicity in the
Constitution and by law to prevent and suppress all incidents of lawless violence” in
Maguindanao Massacre, the ARMM Vice‐Governor, petitioner Adiong, assumed the
the named places. Three days later, she also issued AO 273 “transferring”
vacated post on 10 Dec. 2009 pursuant to the rule on succession found in Sec. 12
supervision of the ARMM from the Office of the President to the DILG. She
Art.VII of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the
subsequently issued AO 273-A, which amended the former AO (the term “transfer”
ARMM Regional Assembly, petitioner Sahali‐Generale, Acting ARMM Vice-
used in AO 273 was amended to “delegate”, referring to the supervision of the
Governor. The DILG Secretary therefore did not take over the administration or the
ARMM by the DILG).
operations of the ARMM.
Claiming that the President’s issuances encroached on the ARMM’s autonomy,
2. The deployment is not by itself an exercise of emergency powers as understood
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-
under Section 23 (2), Article VI of the Constitution, which provides:
Generale, all ARMM officials, filed this petition for prohibition under Rule 65. They
alleged that the President’s proclamation and orders encroached on the ARMM’s
SECTION 23. x x x (2) In times of war or other national emergency, the Congress
autonomy as these issuances empowered the DILG Secretary to take over ARMM’s
may, by law, authorize the President, for a limited period and subject to such
operations and to seize the regional government’s powers. They also claimed that
restrictions as it may prescribe, to exercise powers necessary and proper to carry
the President had no factual basis for declaring a state of emergency, especially in
out a declared national policy. Unless sooner withdrawn by resolution of the
the Province of Sultan Kudarat and the City of Cotabato, where no critical violent
Congress, such powers shall cease upon the next adjournment thereof.
incidents occurred and that the deployment of troops and the taking over of the
ARMM constitutes an invalid exercise of the President’s emergency powers. The President did not proclaim a national emergency, only a state of emergency in
Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared the three places mentioned. And she did not act pursuant to any law enacted by
unconstitutional. Congress that authorized her to exercise extraordinary powers. The calling out of
the armed forces to prevent or suppress lawless violence in such places is a power
that the Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.

3. The President’s call on the armed forces to prevent or suppress lawless violence
springs from the power vested in her under Section 18, Article VII of the
Constitution, which provides:
Section 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. x x x
While it is true that the Court may inquire into the factual bases for the President’s
exercise of the above power, it would generally defer to her judgment on the
matter. As the Court acknowledged in Integrated Bar of the Philippines v. Hon.
Zamora, it is clearly to the President that the Constitution entrusts the
determination of the need for calling out the armed forces to prevent and suppress
lawless violence. Unless it is shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the President’s judgment.
Thus, the Court said:
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed
forces is not easily quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary to arrive at such judgment
might also prove unmanageable for the courts. Certain pertinent information might
be difficult to verify, or wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.
On the other hand, the President, as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency situations
to avert great loss of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless violence must be
done swiftly and decisively if it were to have any effect at all. x x x.
239
Here, petitioners failed to show that the declaration of a state of emergency in the
Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the
President’s exercise of the “calling out” power had no factual basis. They simply
alleged that, since not all areas under the ARMM were placed under a state of
emergency, it follows that the takeover of the entire ARMM by the DILG Secretary
had no basis too.
The imminence of violence and anarchy at the time the President issued
Proclamation 1946 was too grave to ignore and she had to act to prevent further
bloodshed and hostilities in the places mentioned. Progress reports also indicated
that there was movement in these places of both high-powered firearms and
armed men sympathetic to the two clans. Thus, to pacify the people’s fears and
stabilize the situation, the President had to take preventive action. She called out
the armed forces to control the proliferation of loose firearms and dismantle the
armed groups that continuously threatened the peace and security in the affected
places.
Since petitioners are not able to demonstrate that the proclamation of state of
emergency in the subject places and the calling out of the armed forces to prevent
or suppress lawless violence there have clearly no factual bases, the Court must
respect the President’s actions. (Ampatuan vs Puno, G.R. No. 190259, June 7, 2011)
June 7, 2011 (G.R. No. 190259)
PARTIES:
Petitioners: DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-
GENERALE
Respondents : HON. RONALDO PUNO, ARMED FORCES OF THE PHILIPPINES,
PHILIPPINE NATIONAL POLICE
FACTS:
On November 24, 2009, the day after the gruesome massacre of 57 men and
women, then President Gloria Macapagal-Arroyo issued Proclamation 1946, placing
“the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under
a state of emergency.” She directed the AFP and the PNP “to undertake such
 240

measures as may be allowed by the Constitution and by law to prevent and
suppress all incidents of lawless violence” in the named places. Under AO 273, she
also delegated to the DILG the supervision of the ARMM.
The petitioners claimed that the President’s issuances encroached the ARMM’s
autonomy, that it constitutes an invalid exercise of emergency powers, and that
the President had no factual basis for declaring a state of emergency, especially in
the Province of Sultan Kudarat and the City of Cotabato, where no critical violent
incidents occurred. They want Proc. 1946 and AO 273 be declared unconstitutional.
HELD:
Yes. The President’s call on the armed forces to prevent or suppress lawless
violence springs from the power vested in her under Section 18, Article VII of the
Constitution. While it is true that the Court may inquire into the factual bases for
the President’s exercise of the above power, unless it is shown that such
determination was attended by grave abuse of discretion, the Court will accord
respect to the President’s judgment.

The respondents, however, said that its purpose was not to deprive the ARMM of
its autonomy, but to restore peace and order in subject places. It is pursuant to her
“calling out” power as Commander-in-Chief. The determination of the need to
exercise this power rests solely on her wisdom.

The President merely delegated her supervisory powers over the ARMM to the
DILG Secretary who was her alter ego any way. The delegation was necessary to
facilitate the investigation of the mass killings

ISSUE:

WON President Arroyo invalidly exercised emergency powers when she called out
the AFP and the PNP to prevent and suppress all incidents of lawless violence in
Maguindanao, Sultan Kudarat, and Cotabato City

HELD:

NO. The President did not proclaim a national emergency, only a state of
emergency in the three places mentioned. And she did not act pursuant to any law
enacted by Congress that authorized her to exercise extraordinary powers. The
calling out of the armed forces to prevent or suppress lawless violence in such
places is a power that the Constitution directly vests in the President. She did not
need a congressional authority to exercise the same.

ISSUE (2): WON there is factual basis on the calling out of the Armed Forces.

EN BANC
[G.R. No. 158540. August 3, 2005]
SOUTHERN CROSS CEMENT CORPORATION, petitioner, vs. CEMENT
MANUFACTURERS ASSOCIATION OF THE PHILIPPINES, THE SECRETARY
OF THE DEPARTMENT OF TRADE AND INDUSTRY, THE SECRETARY OF
THE DEPARTMENT OF FINANCE and THE COMMISSIONER OF THE
BUREAU OF CUSTOMS, respondents.
RESOLUTION
TINGA, J.:
Cement is hardly an exciting subject for litigation. Still, the parties in this case
have done their best to put up a spirited advocacy of their respective positions,
throwing in everything including the proverbial kitchen sink. At present, the burden
of passion, if not proof, has shifted to public respondents Department of Trade and
Industry (DTI) and private respondent Philippine Cement Manufacturers
Corporation (Philcemcor),[1] who now seek reconsideration of our Decision dated 8
July 2004 (Decision), which granted the petition of petitioner Southern Cross
Cement Corporation (Southern Cross).
This case, of course, is ultimately not just about cement. For respondents, it is
about love of country and the future of the domestic industry in the face of foreign
competition. For this Court, it is about elementary statutory construction,
constitutional limitations on the executive power to impose tariffs and similar
measures, and obedience to the law. Just as much was asserted in the Decision,
and the same holds true with this present Resolution.
An extensive narration of facts can be found in the Decision.[2] As can well be
recalled, the case centers on the interpretation of provisions of Republic Act No.
8800, the Safeguard Measures Act (SMA), which was one of the laws enacted by
Congress soon after the Philippines ratified the General Agreement on Tariff and
Trade (GATT) and the World Trade Organization (WTO) Agreement.[3] The SMA
provides the structure and mechanics for the imposition of emergency measures,
including tariffs, to protect domestic industries and producers from increased
imports which inflict or could inflict serious injury on them.[4]
241
A brief summary as to how the present petition came to be filed by Southern
Cross. Philcemcor, an association of at least eighteen (18) domestic cement
manufacturers filed with the DTI a petition seeking the imposition of safeguard
measures on gray Portland cement,[5] in accordance with the SMA. After the DTI
issued a provisional safeguard measure,[6] the application was referred to the Tariff
Commission for a formal investigation pursuant to Section 9 of the SMA and its
Implementing Rules and Regulations, in order to determine whether or not to
impose a definitive safeguard measure on imports of gray Portland cement. The
Tariff Commission held public hearings and conducted its own investigation, then
on 13 March 2002, issued its Formal Investigation Report (Report). The Report
determined as follows:
The elements of serious injury and imminent threat of serious injury not having
been established, it is hereby recommended that no definitive general safeguard
measure be imposed on the importation of gray Portland cement. [7]
The DTI sought the opinion of the Secretary of Justice whether it could still
impose a definitive safeguard measure notwithstanding the negative finding of the
Tariff Commission. After the Secretary of Justice opined that the DTI could not do
so under the SMA,[8] the DTI Secretary then promulgated a Decision[9] wherein he
expressed the DTIs disagreement with the conclusions of the Tariff Commission,
but at the same time, ultimately denying Philcemcors application for safeguard
measures on the ground that the he was bound to do so in light of the Tariff
Commissions negative findings.[10]
Philcemcor challenged this Decision of the DTI Secretary by filing with the
Court of Appeals a Petition for Certiorari, Prohibition and Mandamus[11] seeking to
set aside the DTI Decision, as well as the Tariff Commissions Report. It prayed that
the Court of Appeals direct the DTI Secretary to disregard the Report and to render
judgment independently of the Report. Philcemcor argued that the DTI Secretary,
vested as he is under the law with the power of review, is not bound to adopt the
recommendations of the Tariff Commission; and, that the Report is void, as it is
predicated on a flawed framework, inconsistent inferences and erroneous
methodology.[12]
The Court of Appeals Twelfth Division, in a Decision[13] penned by Court of
Appeals Associate Justice Elvi John Asuncion,[14] partially granted Philcemcors
petition. The appellate court ruled that it had jurisdiction over the petition for
certiorari since it alleged grave abuse of discretion. While it refused to annul the
findings of the Tariff Commission,[15] it also held that the DTI Secretary was not
bound by the factual findings of the Tariff Commission since such findings are
merely recommendatory and they fall within the ambit of the Secretarys

discretionary review. It determined that the legislative intent is to grant the DTI
Secretary the power to make a final decision on the Tariff Commissions
recommendation.[16]
On 23 June 2003, Southern Cross filed the present petition, arguing that the
Court of Appeals has no jurisdiction over Philcemcors petition, as the proper
remedy is a petition for review with the CTA conformably with the SMA, and; that
the factual findings of the Tariff Commission on the existence or non-existence of
conditions warranting the imposition of general safeguard measures are binding
upon the DTI Secretary.
Despite the fact that the Court of Appeals Decision had not yet become final,
its binding force was cited by the DTI Secretary when he issued a new Decision on
25 June 2003, wherein he ruled that that in light of the appellate courts Decision,
there was no longer any legal impediment to his deciding Philcemcors application
for definitive safeguard measures.[17] He made a determination that, contrary to
the findings of the Tariff Commission, the local cement industry had suffered
serious injury as a result of the import surges.[18] Accordingly, he imposed a
definitive safeguard measure on the importation of gray Portland cement, in the
form of a definitive safeguard duty in the amount of P20.60/40 kg. bag for three
years on imported gray Portland Cement.[19]
On 7 July 2003, Southern Cross filed with the Court a Very Urgent Application
for a Temporary Restraining Order and/or A Writ of Preliminary
Injunction (TRO Application), seeking to enjoin the DTI Secretary from enforcing
his Decision of 25 June 2003 in view of the pending petition before this Court.
Philcemcor filed an opposition, claiming, among others, that it is not this Court but
the CTA that has jurisdiction over the application under the law.
On 1 August 2003, Southern Cross filed with the CTA a Petition for Review,
assailing the DTI Secretarys 25 June 2003 Decision which imposed the definite
safeguard measure. Yet Southern Cross did not promptly inform this Court about
this filing. The first time the Court would learn about this Petition with the CTA was
when Southern Cross mentioned such fact in a pleading dated 11 August 2003 and
filed the next day with this Court.[20]
Philcemcor argued before this Court that Southern Cross had deliberately and
willfully resorted to forum-shopping; that the CTA, being a special court of limited
jurisdiction, could only review the ruling of the DTI Secretary when a safeguard
measure is imposed; and that the factual findings of the Tariff Commission are not
binding on the DTI Secretary.[21]
After giving due course to Southern Crosss Petition, the Court called the case
for oral argument on 18 February 2004.[22] At the oral argument, attended by the
242
counsel for Philcemcor and Southern Cross and the Office of the Solicitor General,
the Court simplified the issues in this wise: (i) whether the Decision of the DTI
Secretary is appealable to the CTA or the Court of Appeals; (ii) assuming that the
Court of Appeals has jurisdiction, whether its Decision is in accordance with law;
and, whether a Temporary Restraining Order is warranted.[23]
After the parties had filed their respective memoranda, the Courts Second
Division, to which the case had been assigned, promulgated its Decision granting
Southern Crosss Petition.[24]The Decision was unanimous, without any separate or
concurring opinion.
The Court ruled that the Court of Appeals had no jurisdiction over
Philcemcors Petition, the proper remedy under Section 29 of the SMA being a
petition for review with the CTA; and that the Court of Appeals erred in ruling that
the DTI Secretary was not bound by the negative determination of the Tariff
Commission and could therefore impose the general safeguard measures, since
Section 5 of the SMA precisely required that the Tariff Commission make a positive
final determination before the DTI Secretary could impose these measures. Anent
the argument that Southern Cross had committed forum-shopping, the Court
concluded that there was no evident malicious intent to subvert procedural rules
so as to match the standard under Section 5, Rule 7 of the Rules of Court of willful
and deliberate forum shopping. Accordingly, the Decision of the Court of Appeals
dated 5 June 2003 was declared null and void.
The Court likewise found it necessary to nullify the Decision of the DTI
Secretary dated 25 June 2003, rendered after the filing of this present Petition.
This Decision by the DTI Secretary had cited the obligatory force of the null and
void Court of Appeals Decision, notwithstanding the fact that the decision of the
appellate court was not yet final and executory. Considering that the decision of
the Court of Appeals was a nullity to begin with, the inescapable conclusion was
that the new decision of the DTI Secretary, prescinding as it did from the
imprimatur of the decision of the Court of Appeals, was a nullity as well.
After the Decision was reported in the media, there was a flurry of
newspaper articles citing alleged negative reactions to the ruling by the counsel for
Philcemcor, the DTI Secretary, and others.[25] Both respondents promptly filed their
respective motions for reconsideration.
On 21 September 2004, the Court En Banc resolved, upon motion of
respondents, to accept the petition and resolve the Motions for
Reconsideration.[26] The case was then reheard[27] on oral argument on 1 March
2005. During the hearing, the Court elicited from the parties their arguments on
the two central issues as discussed in the assailed Decision, pertaining to the
jurisdictional aspect and to the substantive aspect of whether the DTI Secretary

may impose a general safeguard measure despite a negative determination by the
Tariff Commission. The Court chose not to hear argumentation on the peripheral
issue of forum-shopping,[28] although this question shall be tackled herein shortly.
Another point of concern emerged during oral arguments on the exercise of quasi-
judicial powers by the Tariff Commission, and the parties were required by the
Court to discuss in their respective memoranda whether the Tariff Commission
could validly exercise quasi-judicial powers in the exercise of its mandate under the
SMA.
The Court has likewise been notified that subsequent to the rendition of the
Courts Decision, Philcemcor filed a Petition for Extension of the Safeguard
Measure with the DTI, which has been referred to the Tariff Commission.[29] In
an Urgent Motion dated 21 December 2004, Southern Cross prayed that
Philcemcor, the DTI, the Bureau of Customs, and the Tariff Commission be directed
to cease and desist from taking any and all actions pursuant to or under the null
and void CA Decision and DTI Decision, including proceedings to extend the
safeguard measure.[30] In a Manifestation and Motion dated 23 June 2004, the
Tariff Commission informed the Court that since no prohibitory injunction or order
of such nature had been issued by any court against the Tariff Commission, the
Commission proceeded to complete its investigation on the petition for extension,
pursuant to Section 9 of the SMA, but opted to defer transmittal of its report to the
DTI Secretary pending guidance from this Court on the propriety of such a step
considering this pending Motion for Reconsideration. In a Resolutiondated 5 July
2005, the Court directed the parties to maintain the status quo effective of even
date, and until further orders from this Court. The denial of the pending motions
for reconsideration will obviously render the pending petition for extension
academic.
I. Jurisdiction of the Court of Tax Appeals
Under Section 29 of the SMA
The first core issue resolved in the assailed Decision was whether the Court of
Appeals had jurisdiction over the special civil action for certiorari filed by
Philcemcor assailing the 5 April 2002 Decision of the DTI Secretary. The general
jurisdiction of the Court of Appeals over special civil actions for certiorari is beyond
doubt. The Constitution itself assures that judicial review avails to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government. At the same time, the special civil action of certiorari is available only
when there is no plain, speedy and adequate remedy in the ordinary course of
243
law.[31] Philcemcors recourse of special civil action before the Court of Appeals to
challenge the Decision of the DTI Secretary not to impose the general safeguard
measures is not based on the SMA, but on the general rule on certiorari. Thus, the
Court proceeded to inquire whether indeed there was no other plain, speedy and
adequate remedy in the ordinary course of law that would warrant the allowance
of Philcemcors special civil action.
The answer hinged on the proper interpretation of Section 29 of the SMA,
which reads:
Section 29. Judicial Review. Any interested party who is adversely affected by
the ruling of the Secretary in connection with the imposition of a safeguard
measure may file with the CTA, a petition for review of such ruling within thirty
(30) days from receipt thereof. Provided, however, that the filing of such petition
for review shall not in any way stop, suspend or otherwise toll the imposition or
collection of the appropriate tariff duties or the adoption of other appropriate
safeguard measures, as the case may be.
The petition for review shall comply with the same requirements and shall follow
the same rules of procedure and shall be subject to the same disposition as in
appeals in connection with adverse rulings on tax matters to the Court of
Appeals.[32] (Emphasis supplied)
The matter is crucial for if the CTA properly had jurisdiction over the petition
challenging the DTI Secretarys ruling not to impose a safeguard measure, then the
special civil action of certiorari resorted to instead by Philcemcor would not avail,
owing to the existence of a plain, speedy and adequate remedy in the ordinary
course of law.[33] The Court of Appeals, in asserting that it had jurisdiction, merely
cited the general rule on certiorari jurisdiction without bothering to refer to, or
possibly even study, the import of Section 29. In contrast, this Court duly
considered the meaning and ramifications of Section 29, concluding that it
provided for a plain, speedy and adequate remedy that Philcemcor could have
resorted to instead of filing the special civil action before the Court of Appeals.
Philcemcor still holds on to its hypothesis that the petition for review allowed
under Section 29 lies only if the DTI Secretarys ruling imposes a safeguard measure.
If, on the other hand, the DTI Secretarys ruling is not to impose a safeguard
measure, judicial review under Section 29 could not be resorted to since the
provision refers to rulings in connection with the imposition of the safeguard
measure, as opposed to the non-imposition. Since the Decision dated 5 April 2002
resolved against imposing a safeguard measure, Philcemcor claims that the proper
remedial recourse is a petition for certiorari with the Court of Appeals.

Interestingly, Republic Act No. 9282, promulgated on 30 March 2004,
expressly vests unto the CTA jurisdiction over [d]ecisions of the Secretary of Trade
and Industry, in case of nonagricultural product, commodity or article . . . involving
. . . safeguard measures under Republic Act No. 8800, where either party may
appeal the decision to impose or not to impose said duties.[34] It is clear that any
future attempts to advance the literalist position of the respondents would
consequently fail. However, since Republic Act No. 9282 has no retroactive effect,
this Court had to decide whether Section 29 vests jurisdiction on the CTA over
rulings of the DTI Secretary not to impose a safeguard measure. And the Court, in
its assailed Decision, ruled that the CTA is endowed with such jurisdiction.
Both respondents reiterate their fundamentalist reading that Section 29
authorizes the petition for review before the CTA only when the DTI Secretary
decides to impose a safeguard measure, but not when he decides not to. In doing
so, they fail to address what the Court earlier pointed out would be the absurd
consequences if their interpretation is followed to its logical end. But in affirming,
as the Court now does, its previous holding that the CTA has jurisdiction over
petitions for review questioning the non-imposition of safeguard measures by the
DTI Secretary, the Court relies on the plain reading that Section 29 explicitly vests
jurisdiction over such petitions on the CTA.
Under Section 29, there are three requisites to enable the CTA to acquire
jurisdiction over the petition for review contemplated therein: (i) there must be a
ruling by the DTI Secretary; (ii) the petition must be filed by an interested party
adversely affected by the ruling; and (iii) such ruling must be in connection with the
imposition of a safeguard measure. Obviously, there are differences between a
ruling for the imposition of a safeguard measure, and one issued in connection with
the imposition of a safeguard measure. The first adverts to a singular type of ruling,
namely one that imposes a safeguard measure. The second does not contemplate
only one kind of ruling, but a myriad of rulings issued in connection with the
imposition of a safeguard measure.
Respondents argue that the Court has given an expansive interpretation to
Section 29, contrary to the established rule requiring strict construction against the
existence of jurisdiction in specialized courts. [35] But it is the express provision of
Section 29, and not this Court, that mandates CTA jurisdiction to be broad enough
to encompass more than just a ruling imposing the safeguard measure.
The key phrase remains in connection with. It has connotations that are
obvious even to the layman. A ruling issued in connection with the imposition of a
safeguard measure would be one that bears some relation to the imposition of a
safeguard measure. Obviously, a ruling imposing a safeguard measure is covered by
the phrase in connection with, but such ruling is by no means exclusive. Rulings
244
which modify, suspend or terminate a safeguard measure are necessarily in
connection with the imposition of a safeguard measure. So does a ruling allowing
for a provisional safeguard measure. So too, a ruling by the DTI Secretary refusing
to refer the application for a safeguard measure to the Tariff Commission. It is clear
that there is an entire subset of rulings that the DTI Secretary may issue in
connection with the imposition of a safeguard measure, including those that are
provisional, interlocutory, or dispositive in character.[36]By the same token, a ruling
not to impose a safeguard measure is also issued in connection with the imposition
of a safeguard measure.
In arriving at the proper interpretation of in connection with, the Court
referred to the U.S. Supreme Court cases of Shaw v. Delta Air Lines, Inc.[37] and New
York State Blue Cross Plans v. Travelers Ins.[38] Both cases considered the
interpretation of the phrase relates to as used in a federal statute, the Employee
Retirement Security Act of 1974. Respondents criticize the citations on the premise
that the cases are not binding in our jurisdiction and do not involve safeguard
measures. The criticisms are off-tangent considering that our ruling did not call for
the application of the Employee Retirement Security Act of 1974 in the Philippine
milieu. The American cases are not relied upon as precedents, but as guides of
interpretation. Certainly, if there are applicable local precedents pertaining to the
interpretation of the phrase in connection with, then these certainly would have
some binding force. But none avail, and neither do the respondents demonstrate a
countervailing holding in Philippine jurisprudence.
Yet we should consider the claim that an expansive interpretation was
favored in Shaw because the law in question was an employees benefit law that
had to be given an interpretation favorable to its intended beneficiaries.[39] In the
next breath, Philcemcor notes that the U.S. Supreme Court itself was alarmed by
the expansive interpretation in Shaw and thus in Blue Cross, the Shaw ruling was
reversed and a more restrictive interpretation was applied based on congressional
intent.[40]
Respondents would like to make it appear that the Court acted rashly in
applying a discarded precedent in Shaw, a non-binding foreign precedent
nonetheless. But the Court did make the following observation in
its Decision pertaining to Blue Cross:
Now, let us determine the maximum scope and reach of the phrase in connection
with as used in Section 29 of the SMA. A literalist reading or linguistic survey may
not satisfy. Even the U.S. Supreme Court in New York State Blue Cross Plans v.
Travelers Ins.[41] conceded that the phrases relate to or in connection with may be
extended to the farthest stretch of indeterminacy for, universally, relations or
connections are infinite and stop nowhere.[42] Thus, in the case the U.S. High

Court, examining the same phrase of the same provision of law involved in Shaw,
resorted to looking at the statute and its objectives as the alternative to an
uncritical literalism. A similar inquiry into the other provisions of the SMA is in
order to determine the scope of review accorded therein to the CTA.[43]
In the next four paragraphs of the Decision, encompassing four pages, the
Court proceeded to inquire into the SMA and its objectives as a means to
determine the scope of rulings to be deemed as in connection with the imposition
of a safeguard measure. Certainly, this Court did not resort to the broadest
interpretation possible of the phrase in connection with, but instead sought to
bring it into the context of the scope and objectives of the SMA. The ultimate
conclusion of the Court was that the phrase includes all rulings of the DTI Secretary
which arise from the time an application or motu proprio initiation for the
imposition of a safeguard measure is taken.[44] This conclusion was derived from
the observation that the imposition of a general safeguard measure is a process,
initiated motu proprio or through application, which undergoes several stages upon
which the DTI Secretary is obliged or may be called upon to issue a ruling.
It should be emphasized again that by utilizing the phrase in connection with,
it is the SMA that expressly vests jurisdiction on the CTA over petitions questioning
the non-imposition by the DTI Secretary of safeguard measures. The Court is simply
asserting, as it should, the clear intent of the legislature in enacting the SMA.
Without in connection with or a synonymous phrase, the Court would be
compelled to favor the respondents position that only rulings imposing safeguard
measures may be elevated on appeal to the CTA. But considering that the statute
does make use of the phrase, there is little sense in delving into alternate
scenarios.
Respondents fail to convincingly address the absurd consequences pointed
out by the Decision had their proposed interpretation been adopted. Indeed,
suffocated beneath the respondents legalistic tinsel is the elemental questionwhat
sense is there in vesting jurisdiction on the CTA over a decision to impose a
safeguard measure, but not on one choosing not to impose. Of course, it is not for
the Court to inquire into the wisdom of legislative acts, hence the rule that
jurisdiction must be expressly vested and not presumed. Yet ultimately,
respondents muddle the issue by making it appear that the Decision has uniquely
expanded the jurisdictional rules. For the respondents, the proper statutory
interpretation of the crucial phrase in connection with is to pretend that the phrase
did not exist at all in the statute. The Court, in taking the effort to examine the
meaning and extent of the phrase, is merely giving breath to the legislative will.
The Court likewise stated that the respondents position calls for split
jurisdiction, which is judicially abhorred. In rebuttal, the public respondents cite
245
Sections 2313 and 2402 of the Tariff and Customs Code (TCC), which allegedly
provide for a splitting of jurisdiction of the CTA. According to public respondents,
under Section 2313 of the TCC, a decision of the Commissioner of Customs
affirming a decision of the Collector of Customs adverse to the government is
elevated for review to the Secretary of Finance. However, under Section 2402 of
the TCC, a ruling of the Commissioner of the Bureau of Customs against a taxpayer
must be appealed to the Court of Tax Appeals, and not to the Secretary of Finance.
Strictly speaking, the review by the Secretary of Finance of the decision of the
Commissioner of Customs is not judicial review, since the Secretary of Finance
holds an executive and not a judicial office. The contrast is apparent with the
situation in this case, wherein the interpretation favored by the respondents calls
for the exercise of judicial review by two different courts over essentially the same
questionwhether the DTI Secretary should impose general safeguard measures.
Moreover, as petitioner points out, the executive department cannot appeal
against itself. The Collector of Customs, the Commissioner of Customs and the
Secretary of Finance are all part of the executive branch. If the Collector of Customs
rules against the government, the executive cannot very well bring suit in courts
against itself. On the other hand, if a private person is aggrieved by the decision of
the Collector of Customs, he can have proper recourse before the courts, which
now would be called upon to exercise judicial review over the action of the
executive branch.
More fundamentally, the situation involving split review of the decision of
the Collector of Customs under the TCC is not apropos to the case at bar. The TCC
in that instance is quite explicit on the divergent reviewing body or official
depending on which party prevailed at the Collector of Customs level. On the other
hand, there is no such explicit expression of bifurcated appeals in Section 29 of the
SMA.
Public respondents likewise cite Fabian v. Ombudsman[45] as another instance
wherein the Court purportedly allowed split jurisdiction. It is argued that the Court,
in ruling that it was the Court of Appeals which possessed appellate authority to
review decisions of the Ombudsman in administrative cases while the Court
retaining appellate jurisdiction of decisions of the Ombudsman in non-
administrative cases, effectively sanctioned split jurisdiction between the Court and
the Court of Appeals.[46]
Nonetheless, this argument is successfully undercut by Southern Cross, which
points out the essential differences in the power exercised by the Ombudsman in
administrative cases and non-administrative cases relating to criminal complaints.
In the former, the Ombudsman may impose an administrative penalty, while in
acting upon a criminal complaint what the Ombudsman undertakes is a preliminary

investigation. Clearly, the capacity in which the Ombudsman takes on in deciding
an administrative complaint is wholly different from that in conducting a
preliminary investigation. In contrast, in ruling upon a safeguard measure, the DTI
Secretary acts in one and the same role. The variance between an order granting or
denying an application for a safeguard measure is polar though emanating from the
same equator, and does not arise from the distinct character of the putative
actions involved.
Philcemcor imputes intelligent design behind the alleged intent of Congress
to limit CTA review only to impositions of the general safeguard measures. It claims
that there is a necessary tax implication in case of an imposition of a tariff where
the CTAs expertise is necessary, but there is no such tax implication, hence no need
for the assumption of jurisdiction by a specialized agency, when the ruling rejects
the imposition of a safeguard measure. But of course, whether the ruling under
review calls for the imposition or non-imposition of the safeguard measure, the
common question for resolution still is whether or not the tariff should be imposed
an issue definitely fraught with a tax dimension. The determination of the question
will call upon the same kind of expertise that a specialized body as the CTA
presumably possesses.
In response to the Courts observation that the setup proposed by
respondents was novel, unusual, cumbersome and unwise, public respondents
invoke the maxim that courts should not be concerned with the wisdom and
efficacy of legislation.[47] But this prescinds from the bogus claim that the CTA may
not exercise judicial review over a decision not to impose a safeguard measure, a
prohibition that finds no statutory support. It is likewise settled in statutory
construction that an interpretation that would cause inconvenience and absurdity
is not favored. Respondents do not address the particular illogic that the Court
pointed out would ensue if their position on judicial review were adopted.
According to the respondents, while a ruling by the DTI Secretary imposing a
safeguard measure may be elevated on review to the CTA and assailed on the
ground of errors in fact and in law, a ruling denying the imposition of safeguard
measures may be assailed only on the ground that the DTI Secretary committed
grave abuse of discretion. As stressed in the Decision, [c]ertiorari is a remedy
narrow in its scope and inflexible in its character. It is not a general utility tool in
the legal workshop.[48]
It is incorrect to say that the Decision bars any effective remedy should the
Tariff Commission act or conclude erroneously in making its determination whether
the factual conditions exist which necessitate the imposition of the general
safeguard measure. If the Tariff Commission makes a negative final determination,
the DTI Secretary, bound as he is by this negative determination, has to render a
decision denying the application for safeguard measures citing the Tariff
246
Commissions findings as basis. Necessarily then, such negative determination of
the Tariff Commission being an integral part of the DTI Secretarys ruling would be
open for review before the CTA, which again is especially qualified by reason of its
expertise to examine the findings of the Tariff Commission. Moreover, considering
that the Tariff Commission is an instrumentality of the government, its actions (as
opposed to those undertaken by the DTI Secretary under the SMA) are not beyond
the pale of certiorari jurisdiction. Unfortunately for Philcemcor, it hinged its cause
on the claim that the DTI Secretarys actions may be annulled on certiorari,
notwithstanding the explicit grant of judicial review over that cabinet members
actions under the SMA to the CTA.
Finally on this point, Philcemcor argues that assuming this Courts
interpretation of Section 29 is correct, such ruling should not be given retroactive
effect, otherwise, a gross violation of the right to due process would be had. This
erroneously presumes that it was this Court, and not Congress, which vested
jurisdiction on the CTA over rulings of non-imposition rendered by the DTI
Secretary. We have repeatedly stressed that Section 29 expressly confers CTA
jurisdiction over rulings in connection with the imposition of the safeguard
measure, and the reassertion of this point in the Decision was a matter of
emphasis, not of contrivance. The due process protection does not shield those
who remain purposely blind to the express rules that ensure the sporting play of
procedural law.
Besides, respondents claim would also apply every time this Court is
compelled to settle a novel question of law, or to reverse precedent. In such cases,
there would always be litigants whose causes of action might be vitiated by the
application of newly formulated judicial doctrines. Adopting their claim would
unwisely force this Court to treat its dispositions in unprecedented, sometimes
landmark decisions not as resolutions to the live cases or controversies, but as legal
doctrine applicable only to future litigations.
II. Positive Final Determination
By the Tariff Commission an
Indispensable Requisite to the
Imposition of General Safeguard Measures
The second core ruling in the Decision was that contrary to the holding of the
Court of Appeals, the DTI Secretary was barred from imposing a general safeguard
measure absent a positive final determination rendered by the Tariff Commission.
The fundamental premise rooted in this ruling is based on the acknowledgment

that the required positive final determination of the Tariff Commission exists as a
properly enacted constitutional limitation imposed on the delegation of the
legislative power to impose tariffs and imposts to the President under Section
28(2), Article VI of the Constitution.
Congressional Limitations Pursuant
To Constitutional Authority on the
Delegated Power to Impose
Safeguard Measures
The safeguard measures imposable under the SMA generally involve duties
on imported products, tariff rate quotas, or quantitative restrictions on the
importation of a product into the country. Concerning as they do the foreign
importation of products into the Philippines, these safeguard measures fall within
the ambit of Section 28(2), Article VI of the Constitution, which states:
The Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts
within the framework of the national development program of the Government.[49]
The Court acknowledges the basic postulates ingrained in the provision, and,
hence, governing in this case. They are:
(1) It is Congress which authorizes the President to impose tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or
imposts. Thus, the authority cannot come from the Finance Department, the
National Economic Development Authority, or the World Trade Organization, no
matter how insistent or persistent these bodies may be.
(2) The authorization granted to the President must be embodied in a law.
Hence, the justification cannot be supplied simply by inherent executive powers. It
cannot arise from administrative or executive orders promulgated by the executive
branch or from the wisdom or whim of the President.
(3) The authorization to the President can be exercised only within the
specified limits set in the law and is further subject to limitations and restrictions
which Congress may impose. Consequently, if Congress specifies that the tariff
rates should not exceed a given amount, the President cannot impose a tariff rate
that exceeds such amount. If Congress stipulates that no duties may be imposed on
247
the importation of corn, the President cannot impose duties on corn, no matter
how actively the local corn producers lobby the President. Even the most picayune
of limits or restrictions imposed by Congress must be observed by the President.
There is one fundamental principle that animates these constitutional
postulates. These impositions under Section 28(2), Article VI fall within the realm
of the power of taxation, a power which is within the sole province of the
legislature under the Constitution.
Without Section 28(2), Article VI, the executive branch has no authority to
impose tariffs and other similar tax levies involving the importation of foreign
goods. Assuming that Section 28(2) Article VI did not exist, the enactment of the
SMA by Congress would be voided on the ground that it would constitute an undue
delegation of the legislative power to tax. The constitutional provision shields such
delegation from constitutional infirmity, and should be recognized as an
exceptional grant of legislative power to the President, rather than the affirmation
of an inherent executive power.
This being the case, the qualifiers mandated by the Constitution on this
presidential authority attain primordial consideration. First, there must be a law,
such as the SMA. Second, there must be specified limits, a detail which would be
filled in by the law. And further, Congress is further empowered to impose
limitations and restrictions on this presidential authority. On this last power, the
provision does not provide for specified conditions, such as that the limitations and
restrictions must conform to prior statutes, internationally accepted practices,
accepted jurisprudence, or the considered opinion of members of the executive
branch.
The Court recognizes that the authority delegated to the President under
Section 28(2), Article VI may be exercised, in accordance with legislative sanction,
by the alter egos of the President, such as department secretaries. Indeed, for
purposes of the Presidents exercise of power to impose tariffs under Article VI,
Section 28(2), it is generally the Secretary of Finance who acts as alter ego of the
President. The SMA provides an exceptional instance wherein it is the DTI or
Agriculture Secretary who is tasked by Congress, in their capacities as alter egos of
the President, to impose such measures. Certainly, the DTI Secretary has no
inherent power, even as alter ego of the President, to levy tariffs and imports.
Concurrently, the tasking of the Tariff Commission under the SMA should be
likewise construed within the same context as part and parcel of the legislative
delegation of its inherent power to impose tariffs and imposts to the executive
branch, subject to limitations and restrictions. In that regard, both the Tariff
Commission and the DTI Secretary may be regarded as agents of Congress within
their limited respective spheres, as ordained in the SMA, in the implementation of

the said law which significantly draws its strength from the plenary legislative
power of taxation. Indeed, even the President may be considered as an agent of
Congress for the purpose of imposing safeguard measures. It is Congress, not the
President, which possesses inherent powers to impose tariffs and imposts.
Without legislative authorization through statute, the President has no power,
authority or right to impose such safeguard measures because taxation is
inherently legislative, not executive.
When Congress tasks the President or his/her alter egos to impose
safeguard measures under the delineated conditions, the President or the alter
egos may be properly deemed as agents of Congress to perform an act that
inherently belongs as a matter of right to the legislature. It is basic agency law
that the agent may not act beyond the specifically delegated powers or disregard
the restrictions imposed by the principal. In short, Congress may establish the
procedural framework under which such safeguard measures may be imposed, and
assign the various offices in the government bureaucracy respective tasks pursuant
to the imposition of such measures, the task assignment including the factual
determination of whether the necessary conditions exists to warrant such
impositions. Under the SMA, Congress assigned the DTI Secretary and the Tariff
Commission their respective functions[50] in the legislatures scheme of things.
There is only one viable ground for challenging the legality of the limitations
and restrictions imposed by Congress under Section 28(2) Article VI, and that is
such limitations and restrictions are themselves violative of the Constitution. Thus,
no matter how distasteful or noxious these limitations and restrictions may seem,
the Court has no choice but to uphold their validity unless their constitutional
infirmity can be demonstrated.
What are these limitations and restrictions that are material to the present
case? The entire SMA provides for a limited framework under which the President,
through the DTI and Agriculture Secretaries, may impose safeguard measures in
the form of tariffs and similar imposts. The limitation most relevant to this case is
contained in Section 5 of the SMA, captioned Conditions for the Application of
General Safeguard Measures, and stating:
The Secretary shall apply a general safeguard measure upon a positive final
determination of the [Tariff] Commission that a product is being imported into the
country in increased quantities, whether absolute or relative to the domestic
production, as to be a substantial cause of serious injury or threat thereof to the
domestic industry; however, in the case of non-agricultural products, the Secretary
shall first establish that the application of such safeguard measures will be in the
public interest.[51]
248
Positive Final Determination By Tariff Commission Plainly Required by Section 5 of
SMA
There is no question that Section 5 of the SMA operates as a limitation validly
imposed by Congress on the presidential[52] authority under the SMA to impose
tariffs and imposts. That the positive final determination operates as an
indispensable requisite to the imposition of the safeguard measure, and that it is
the Tariff Commission which makes such determination, are legal propositions
plainly expressed in Section 5 for the easy comprehension for everyone but
respondents.
Philcemcor attributes this Courts conclusion on the indispensability of the
positive final determination to flawed syllogism in that we read the proposition if A
then B as if it stated if A, and only A, then B.[53] Translated in practical terms, our
conclusion, according to Philcemcor, would have only been justified had Section 5
read shall apply a general safeguard measure upon, and only upon, a positive final
determination of the Tariff Commission.
Statutes are not designed for the easy comprehension of the five-year old
child. Certainly, general propositions laid down in statutes need not be expressly
qualified by clauses denoting exclusivity in order that they gain efficacy. Indeed,
applying this argument, the President would, under the Constitution, be authorized
to declare martial law despite the absence of the invasion, rebellion or public
safety requirement just because the first paragraph of Section 18, Article VII fails to
state the magic word only.[54]
But let us for the nonce pursue Philcemcors logic further. It claims that since
Section 5 does not allegedly limit the circumstances upon which the DTI Secretary
may impose general safeguard measures, it is a worthy pursuit to determine
whether the entire context of the SMA, as discerned by all the other familiar
indicators of legislative intent supplied by norms of statutory interpretation, would
justify safeguard measures absent a positive final determination by the Tariff
Commission.
The first line of attack employed is on Section 5 itself, it allegedly not being as
clear as it sounds. It is advanced that Section 5 does not relate to the legal ability of
either the Tariff Commission or the DTI Secretary to bind or foreclose review and
reversal by one or the other. Such relationship should instead be governed by
domestic administrative law and remedial law. Philcemcor thus would like to cast
the proposition in this manner: Does it run contrary to our legal order to assert, as
the Court did in its Decision, that a body of relative junior competence as the Tariff
Commission can bind an administrative superior and cabinet officer, the DTI
Secretary? It is easy to see why Philcemcor would like to divorce this DTI Secretary-
Tariff Commission interaction from the confines of the SMA. Shorn of context, the

notion would seem radical and unjustifiable that the lowly Tariff Commission can
bind the hands and feet of the DTI Secretary.
It can be surmised at once that respondents preferred interpretation is based
not on the express language of the SMA, but from implications derived in a
roundabout manner. Certainly, no provision in the SMA expressly authorizes the
DTI Secretary to impose a general safeguard measure despite the absence of a
positive final recommendation of the Tariff Commission. On the other hand,
Section 5 expressly states that the DTI Secretary shall apply a general safeguard
measure upon a positive final determination of the [Tariff] Commission. The causal
connection in Section 5 between the imposition by the DTI Secretary of the general
safeguard measure and the positive final determination of the Tariff Commission is
patent, and even respondents do not dispute such connection.
As stated earlier, the Court in its Decision found Section 5 to be clear, plain
and free from ambiguity so as to render unnecessary resort to the congressional
records to ascertain legislative intent. Yet respondents, on the dubitable premise
that Section 5 is not as express as it seems, again latch on to the record of
legislative deliberations in asserting that there was no legislative intent to bar the
DTI Secretary from imposing the general safeguard measure anyway despite the
absence of a positive final determination by the Tariff Commission.
Let us take the bait for a moment, and examine respondents commonly cited
portion of the legislative record. One would presume, given the intense advocacy
for the efficacy of these citations, that they contain a smoking gun express
declarations from the legislators that the DTI Secretary may impose a general
safeguard measure even if the Tariff Commission refuses to render a positive final
determination. Such smoking gun, if it exists, would characterize our Decision as
disingenuous for ignoring such contrary expression of intent from the legislators
who enacted the SMA. But as with many things, the anticipation is more dramatic
than the truth.
The excerpts cited by respondents are derived from the interpellation of the
late Congressman Marcial Punzalan Jr., by then (and still is) Congressman Simeon
Datumanong.[55]Nowhere in these records is the view expressed that the DTI
Secretary may impose the general safeguard measures if the Tariff Commission
issues a negative final determination or otherwise is unable to make a positive final
determination. Instead, respondents hitch on the observations of Congressman
Punzalan Jr., that the results of the [Tariff] Commissions findings . . . is
subsequently submitted to [the DTI Secretary] for the [DTI Secretary] to impose or
not to impose; and that the [DTI Secretary] here iswho would make the final
decision on the recommendation that is made by a more technical body [such as
the Tariff Commission].[56]
249
There is nothing in the remarks of Congressman Punzalan which contradict
our Decision. His observations fall in accord with the respective roles of the Tariff
Commission and the DTI Secretary under the SMA. Under the SMA, it is the Tariff
Commission that conducts an investigation as to whether the conditions exist to
warrant the imposition of the safeguard measures. These conditions are
enumerated in Section 5, namely; that a product is being imported into the country
in increased quantities, whether absolute or relative to the domestic production, as
to be a substantial cause of serious injury or threat thereof to the domestic
industry. After the investigation of the Tariff Commission, it submits a report to the
DTI Secretary which states, among others, whether the above-stated conditions for
the imposition of the general safeguard measures exist. Upon a positive final
determination that these conditions are present, the Tariff Commission then is
mandated to recommend what appropriate safeguard measures should be
undertaken by the DTI Secretary. Section 13 of the SMA gives five (5) specific
options on the type of safeguard measures the Tariff Commission recommends to
the DTI Secretary.
At the same time, nothing in the SMA obliges the DTI Secretary to adopt the
recommendations made by the Tariff Commission. In fact, the SMA requires that
the DTI Secretary establish that the application of such safeguard measures is in
the public interest, notwithstanding the Tariff Commissions recommendation on
the appropriate safeguard measure upon its positive final determination. Thus,
even if the Tariff Commission makes a positive final determination, the DTI
Secretary may opt not to impose a general safeguard measure, or choose a
different type of safeguard measure other than that recommended by the Tariff
Commission.
Congressman Punzalan was cited as saying that the DTI Secretary makes the
decision to impose or not to impose, which is correct since the DTI Secretary may
choose not to impose a safeguard measure in spite of a positive final determination
by the Tariff Commission. Congressman Punzalan also correctly stated that it is the
DTI Secretary who makes the final decision on the recommendation that is made
[by the Tariff Commission], since the DTI Secretary may choose to impose a general
safeguard measure different from that recommended by the Tariff Commission or
not to impose a safeguard measure at all. Nowhere in these cited deliberations was
Congressman Punzalan, or any other member of Congress for that matter, quoted
as saying that the DTI Secretary may ignore a negative determination by the Tariff
Commission as to the existence of the conditions warranting the imposition of
general safeguard measures, and thereafter proceed to impose these measures
nonetheless. It is too late in the day to ascertain from the late Congressman
Punzalan himself whether he had made these remarks in order to assure the other
legislators that the DTI Secretary may impose the general safeguard measures
notwithstanding a negative determination by the Tariff Commission. But certainly,

the language of Section 5 is more resolutory to that question than the recorded
remarks of Congressman Punzalan.
Respondents employed considerable effort to becloud Section 5 with
undeserved ambiguity in order that a proper resort to the legislative deliberations
may be had. Yet assuming that Section 5 deserves to be clarified through an inquiry
into the legislative record, the excerpts cited by the respondents are far more
ambiguous than the language of the assailed provision regarding the key question
of whether the DTI Secretary may impose safeguard measures in the face of a
negative determination by the Tariff Commission. Moreover, even Southern Cross
counters with its own excerpts of the legislative record in support of their own
view.[57]
It will not be difficult, especially as to heavily-debated legislation, for two
sides with contrapuntal interpretations of a statute to highlight their respective
citations from the legislative debate in support of their particular views.[58] A futile
exercise of second-guessing is happily avoided if the meaning of the statute is clear
on its face. It is evident from the text of Section 5 that there must be a positive
final determination by the Tariff Commission that a product is being imported
into the country in increased quantities (whether absolute or relative to domestic
production), as to be a substantial cause of serious injury or threat to the
domestic industry. Any disputation to the contrary is, at best, the product of
wishful thinking.
For the same reason that Section 5 is explicit as regards the essentiality of a
positive final determination by the Tariff Commission, there is no need to refer to
the Implementing Rules of the SMA to ascertain a contrary intent. If there is indeed
a provision in the Implementing Rules that allows the DTI Secretary to impose a
general safeguard measure even without the positive final determination by the
Tariff Commission, said rule is void as it cannot supplant the express language of
the legislature. Respondents essentially rehash their previous arguments on this
point, and there is no reason to consider them anew. The Decision made it clear
that nothing in Rule 13.2 of the Implementing Rules, even though captioned Final
Determination by the Secretary, authorizes the DTI Secretary to impose a general
safeguard measure in the absence of a positive final determination by the Tariff
Commission.[59] Similarly, the Rules and Regulations to Govern the Conduct of
Investigation by the Tariff Commission Pursuant to Republic Act No. 8800 now cited
by the respondent does not contain any provision that the DTI Secretary may
impose the general safeguard measures in the absence of a positive final
determination by the Tariff Commission.
Section 13 of the SMA further bolsters the interpretation as argued by
Southern Cross and upheld by the Decision. The first paragraph thereof states that
250
[u]pon its positive determination, the [Tariff] Commission shall recommend to the
Secretary an appropriate definitive measure, clearly referring to the Tariff
Commission as the entity that makes the positive determination. On the other
hand, the penultimate paragraph of the same provision states that [i]n the event of
a negative final determination, the DTI Secretary is to immediately issue through
the Secretary of Finance, a written instruction to the Commissioner of Customs
authorizing the return of the cash bonds previously collected as a provisional
safeguard measure. Since the first paragraph of the same provision states that it is
the Tariff Commission which makes the positive determination, it necessarily
follows that it, and not the DTI Secretary, makes the negative final determination
as referred to in the penultimate paragraph of Section 13.[60]
The Separate Opinion considers as highly persuasive of former Tariff
Commission Chairman Abon, who stated that the Commissions findings are merely
recommendatory.[61] Again, the considered opinion of Chairman Abon is of no
operative effect if the statute plainly states otherwise, and Section 5 bluntly does
require a positive final determination by the Tariff Commission before the DTI
Secretary may impose a general safeguard measure.[62]Certainly, the Court cannot
give controlling effect to the statements of any public officer in serious denial of his
duties if the law otherwise imposes the duty on the public office or officer.
Nonetheless, if we are to render persuasive effect on the considered opinion
of the members of the Executive Branch, it bears noting that the Secretary of the
Department of Justice rendered an Opinion wherein he concluded that the DTI
Secretary could not impose a general safeguard measure if the Tariff Commission
made a negative final determination.[63] Unlike Chairman Abons impromptu
remarks made during a hearing, the DOJ Opinion was rendered only after a
thorough study of the question after referral to it by the DTI. The DOJ Secretary is
the alter ego of the President with a stated mandate as the head of the principal
law agency of the government.[64] As the DOJ Secretary has no denominated role in
the SMA, he was able to render his Opinion from the vantage of judicious distance.
Should not his Opinion, studied and direct to the point as it is, carry greater weight
than the spontaneous remarks of the Tariff Commissions Chairman which do not
even expressly disavow the binding power of the Commissions positive final
determination?
III. DTI Secretary has No Power of Review
Over Final Determination of the Tariff Commission

We should reemphasize that it is only because of the SMA, a legislative
enactment, that the executive branch has the power to impose safeguard
measures. At the same time, by constitutional fiat, the exercise of such power is
subjected to the limitations and restrictions similarly enforced by the SMA. In
examining the relationship of the DTI and the Tariff Commission as established in
the SMA, it is essential to acknowledge and consider these predicates.
It is necessary to clarify the paradigm established by the SMA and affirmed by
the Constitution under which the Tariff Commission and the DTI operate, especially
in light of the suggestions that the Courts rulings on the functions of quasi-judicial
power find application in this case. Perhaps the reflexive application of the quasi-
judicial doctrine in this case, rooted as it is in jurisprudence, might allow for some
convenience in ruling, yet doing so ultimately betrays ignorance of the
fundamental power of Congress to reorganize the administrative structure of
governance in ways it sees fit.
The Separate Opinion operates from wholly different premises which are
incomplete. Its main stance, similar to that of respondents, is that the DTI
Secretary, acting as alter ego of the President, may modify and alter the findings of
the Tariff Commission, including the latters negative final determination by
substituting it with his own negative final determination to pave the way for his
imposition of a safeguard measure.[65] Fatally, this conclusion is arrived at without
considering the fundamental constitutional precept under Section 28(2), Article VI,
on the ability of Congress to impose restrictions and limitations in its delegation to
the President to impose tariffs and imposts, as well as the express condition of
Section 5 of the SMA requiring a positive final determination of the Tariff
Commission.
Absent Section 5 of the SMA, the President has no inherent, constitutional,
or statutory power to impose a general safeguard measure. Tellingly, the Separate
Opinion does not directly confront the inevitable question as to how the DTI
Secretary may get away with imposing a general safeguard measure absent a
positive final determination from the Tariff Commission without violating Section 5
of the SMA, which along with Section 13 of the same law, stands as the only direct
legal authority for the DTI Secretary to impose such measures. This is a
constitutionally guaranteed limitation of the highest order, considering that the
presidential authority exercised under the SMA is inherently legislative.
Nonetheless, the Separate Opinion brings to fore the issue of whether the DTI
Secretary, acting either as alter ego of the President or in his capacity as head of an
executive department, may review, modify or otherwise alter the final
determination of the Tariff Commission under the SMA. The succeeding discussion
shall focus on that question.
251
Preliminarily, we should note that none of the parties question the
designation of the DTI or Agriculture secretaries under the SMA as the imposing
authorities of the safeguard measures, even though Section 28(2) Article VI states
that it is the President to whom the power to impose tariffs and imposts may be
delegated by Congress. The validity of such designation under the SMA should not
be in doubt. We recognize that the authorization made by Congress in the SMA to
the DTI and Agriculture Secretaries was made in contemplation of their capacities
as alter egos of the President.
Indeed, in Marc Donnelly & Associates v. Agregado[66] the Court upheld the
validity of a Cabinet resolution fixing the schedule of royalty rates on metal exports
and providing for their collection even though Congress, under Commonwealth Act
No. 728, had specifically empowered the President and not any other official of the
executive branch, to regulate and curtail the export of metals. In so ruling, the
Court held that the members of the Cabinet were acting as alter egos of the
President.[67] In this case, Congress itself authorized the DTI Secretary as alter ego
of the President to impose the safeguard measures. If the Court was previously
willing to uphold the alter egos tariff authority despite the absence of explicit
legislative grant of such authority on the alter ego, all the more reason now when
Congress itself expressly authorized the alter ego to exercise these powers to
impose safeguard measures.
Notwithstanding, Congress in enacting the SMA and prescribing the roles to
be played therein by the Tariff Commission and the DTI Secretary did not envision
that the President, or his/her alter ego, could exercise supervisory powers over the
Tariff Commission. If truly Congress intended to allow the traditional alter ego
principle to come to fore in the peculiar setup established by the SMA, it would
have assigned the role now played by the DTI Secretary under the law instead to
the NEDA. The Tariff Commission is an attached agency of the National Economic
Development Authority,[68] which in turn is the independent planning agency of the
government.[69]
The Tariff Commission does not fall under the administrative supervision of
the DTI.[70] On the other hand, the administrative relationship between the NEDA
and the Tariff Commission is established not only by the Administrative Code, but
similarly affirmed by the Tariff and Customs Code.
Justice Florentino Feliciano, in his ponencia in Garcia v. Executive
Secretary[71], acknowledged the interplay between the NEDA and the Tariff
Commission under the Tariff and Customs Code when he cited the relevant
provisions of that law evidencing such setup. Indeed, under Section 104 of the
Tariff and Customs Code, the rates of duty fixed therein are subject to periodic
investigation by the Tariff Commission and may be revised by the President upon

recommendation of the NEDA.[72] Moreover, under Section 401 of the same law, it
is upon periodic investigations by the Tariff Commission and recommendation of
the NEDA that the President may cause a gradual reduction of protection levels
granted under the law.[73]
At the same time, under the Tariff and Customs Code, no similar role or
influence is allocated to the DTI in the matter of imposing tariff duties. In fact, the
long-standing tradition has been for the Tariff Commission and the DTI to proceed
independently in the exercise of their respective functions. Only very recently have
our statutes directed any significant interplay between the Tariff Commission and
the DTI, with the enactment in 1999 of Republic Act No. 8751 on the imposition of
countervailing duties and Republic Act No. 8752 on the imposition of anti-dumping
duties, and of course the promulgation a year later of the SMA. In all these three
laws, the Tariff Commission is tasked, upon referral of the matter by the DTI, to
determine whether the factual conditions exist to warrant the imposition by the
DTI of a countervailing duty, an anti-dumping duty, or a general safeguard
measure, respectively. In all three laws, the determination by the Tariff
Commission that these required factual conditions exist is necessary before the DTI
Secretary may impose the corresponding duty or safeguard measure. And in all
three laws, there is no express provision authorizing the DTI Secretary to reverse
the factual determination of the Tariff Commission.[74]
In fact, the SMA indubitably establishes that the Tariff Commission is no mere
flunky of the DTI Secretary when it mandates that the positive final
recommendation of the former be indispensable to the latters imposition of a
general safeguard measure. What the law indicates instead is a relationship of
interdependence between two bodies independent of each other under the
Administrative Code and the SMA alike. Indeed, even the ability of the DTI
Secretary to disregard the Tariff Commissions recommendations as to the
particular safeguard measures to be imposed evinces the independence from each
other of these two bodies. This is properly so for two reasons the DTI and the Tariff
Commission are independent of each other under the Administrative Code; and
impropriety is avoided in cases wherein the DTI itself is the one seeking the
imposition of the general safeguard measures, pursuant to Section 6 of the SMA.
Thus, in ascertaining the appropriate legal milieu governing the relationship
between the DTI and the Tariff Commission, it is imperative to apply foremost, if
not exclusively, the provisions of the SMA. The argument that the usual rules on
administrative control and supervision apply between the Tariff Commission and
the DTI as regards safeguard measures is severely undercut by the plain fact that
there is no long-standing tradition of administrative interplay between these two
entities.
252
Within the administrative apparatus, the Tariff Commission appears to be a
lower rank relative to the DTI. But does this necessarily mean that the DTI has the
intrinsic right, absent statutory authority, to reverse the findings of the Tariff
Commission? To insist that it does, one would have to concede for instance that,
applying the same doctrinal guide, the Secretary of the Department of Science and
Technology (DOST) has the right to reverse the rulings of the Civil Aeronautics
Board (CAB) or the issuances of the Philippine Coconut Authority (PCA). As with the
Tariff Commission-DTI, there is no statutory authority granting the DOST Secretary
the right to overrule the CAB or the PCA, such right presumably arising only from
the position of subordinacy of these bodies to the DOST. To insist on such a right
would be to invite department secretaries to interfere in the exercise of functions
by administrative agencies, even in areas wherein such secretaries are bereft of
specialized competencies.
The Separate Opinion notes that notwithstanding above, the Secretary of
Department of Transportation and Communication may review the findings of the
CAB, the Agriculture Secretary may review those of the PCA, and that the Secretary
of the Department of Environment and Natural Resources may pass upon decisions
of the Mines and Geosciences Board.[75] These three officers may be alter egos of
the President, yet their authority to review is limited to those agencies or bureaus
which are, pursuant to statutes such as the Administrative Code of 1987, under the
administrative control and supervision of their respective departments. Thus,
under the express provision of the Administrative Code expressly provides that the
CAB is an attached agency of the DOTC[76], and that the PCA is an attached agency
of the Department of Agriculture.[77] The same law establishes the Mines and Geo-
Sciences Bureau as one of the Sectoral Staff Bureaus [78] that forms part of the
organizational structure of the DENR.[79]
As repeatedly stated, the Tariff Commission does not fall under the
administrative control of the DTI, but under the NEDA, pursuant to the
Administrative Code. The reliance made by the Separate Opinion to those three
examples are thus misplaced.
Nonetheless, the Separate Opinion asserts that the SMA created a functional
relationship between the Tariff Commission and the DTI Secretary, sufficient to
allow the DTI Secretary to exercise alter ego powers to reverse the determination
of the Tariff Commission. Again, considering that the power to impose tariffs in the
first place is not inherent in the President but arises only from congressional grant,
we should affirm the congressional prerogative to impose limitations and
restrictions on such powers which do not normally belong to the executive in the
first place. Nowhere in the SMA does it state that the DTI Secretary may impose
general safeguard measures without a positive final determination by the Tariff

Commission, or that the DTI Secretary may reverse or even review the factual
determination made by the Tariff Commission.
Congress in enacting the SMA and prescribing the roles to be played therein
by the Tariff Commission and the DTI Secretary did not envision that the President,
or his/her alter egocould exercise supervisory powers over the Tariff Commission.
If truly Congress intended to allow the traditional alter ego principle to come to
fore in the peculiar setup established by the SMA, it would have assigned the role
now played by the DTI Secretary under the law instead to the NEDA, the body to
which the Tariff Commission is attached under the Administrative Code.
The Court has no issue with upholding administrative control and supervision
exercised by the head of an executive department, but only over those subordinate
offices that are attached to the department, or which are, under statute, relegated
under its supervision and control. To declare that a department secretary, even if
acting as alter ego of the President, may exercise such control or supervision over
all executive offices below cabinet rank would lead to absurd results such as those
adverted to above. As applied to this case, there is no legal justification for the DTI
Secretary to exercise control, supervision, review or amendatory powers over the
Tariff Commission and its positive final determination. In passing, we note that
there is, admittedly, a feasible mode by which administrative review of the Tariff
Commissions final determination could be had, but it is not the procedure adopted
by respondents and now suggested for affirmation. This mode shall be discussed in
a forthcoming section.
The Separate Opinion asserts that the President, or his/her alter ego cannot
be made a mere rubber stamp of the Tariff Commission since Section 17, Article VII
of the Constitution denominates the Chief Executive exercises control over all
executive departments, bureaus and offices. [80] But let us be clear that such
executive control is not absolute. The definition of the structure of the executive
branch of government, and the corresponding degrees of administrative control
and supervision, is not the exclusive preserve of the executive. It may be effectively
be limited by the Constitution, by law, or by judicial decisions.
The Separate Opinion cites the respected constitutional law authority Fr.
Joaquin Bernas, in support of the proposition that such plenary power of executive
control of the President cannot be restricted by a mere statute passed by Congress.
However, the cited passage from Fr. Bernas actually states, Since the Constitution
has given the President the power of control, with all its awesome implications, it is
the Constitution alone which can curtail such power.[81] Does the President have
such tariff powers under the Constitution in the first place which may be curtailed
by the executive power of control? At the risk of redundancy, we quote Section
28(2), Article VI: The Congress may, by law, authorize the President to fix within
253
specified limits, and subject to such limitations and restrictions as it may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program of
the Government. Clearly the power to impose tariffs belongs to Congress and not
to the President.
It is within reason to assume the framers of the Constitution deemed it too
onerous to spell out all the possible limitations and restrictions on this presidential
authority to impose tariffs. Hence, the Constitution especially allowed Congress
itself to prescribe such limitations and restrictions itself, a prudent move
considering that such authority inherently belongs to Congress and not the
President. Since Congress has no power to amend the Constitution, it should be
taken to mean that such limitations and restrictions should be provided by mere
statute. Then again, even the presidential authority to impose tariffs arises only by
mere statute. Indeed, this presidential privilege is both contingent in nature and
legislative in origin. These characteristics, when weighed against the aspect of
executive control and supervision, cannot militate against Congresss exercise of
its inherent power to tax.
The bare fact is that the administrative superstructure, for all its
unwieldiness, is mere putty in the hands of Congress. The functions and mandates
of the particular executive departments and bureaus are not created by the
President, but by the legislative branch through the Administrative Code. [82] The
President is the administrative head of the executive department, as such obliged
to see that every government office is managed and maintained properly by the
persons in charge of it in accordance with pertinent laws and regulations, and
empowered to promulgate rules and issuances that would ensure a more efficient
management of the executive branch, for so long as such issuances are not
contrary to law.[83] Yet the legislature has the concurrent power to reclassify or
redefine the executive bureaucracy, including the relationship between various
administrative agencies, bureaus and departments, and ultimately, even the power
to abolish executive departments and their components, hamstrung only by
constitutional limitations. The DTI itself can be abolished with ease by Congress
through deleting Title X, Book IV of the Administrative Code. The Tariff Commission
can similarly be abolished through legislative enactment. [84]
At the same time, Congress can enact additional tasks or responsibilities on
either the Tariff Commission or the DTI Secretary, such as their respective roles on
the imposition of general safeguard measures under the SMA. In doing so, the
same Congress, which has the putative authority to abolish the Tariff Commission
or the DTI, is similarly empowered to alter or expand its functions through
modalities which do not align with established norms in the bureaucratic
structure. The Court is bound to recognize the legislative prerogative to prescribe

such modalities, no matter how atypical they may be, in affirmation of the
legislative power to restructure the executive branch of government.
There are further limitations on the executive control adverted to by
the Separate Opinion. The President, in the exercise of executive control, cannot
order a subordinate to disobey a final decision of this Court or any courts. If the
subordinate chooses to disobey, invoking sole allegiance to the President, the
judicial processes can be utilized to compel obeisance. Indeed, when public officers
of the executive department take their oath of office, they swear allegiance and
obedience not to the President, but to the Constitution and the laws of the land.
The invocation of executive control must yield when under its subsumption
includes an act that violates the law.
The Separate Opinion concedes that the exercise of executive control and
supervision by the President is bound by the Constitution and law.[85] Still, just
three sentences after asserting that the exercise of executive control must be
within the bounds of the Constitution and law, the Separate Opinion asserts, the
control power of the Chief Executive emanates from the Constitution; no act of
Congress may validly curtail it.[86] Laws are acts of Congress, hence valid confusion
arises whether the Separate Opinion truly believes the first proposition that
executive control is bound by law. This is a quagmire for the Separate Opinion to
resolve for itself
The Separate Opinion unduly considers executive control as the ne plus
ultra constitutional standard which must govern in this case. But while the
President may generally have the power to control, modify or set aside the actions
of a subordinate, such powers may be constricted by the Constitution, the
legislature, and the judiciary. This is one of the essences of the check-and-balance
system in our tri-partite constitutional democracy. Not one head of a branch of
government may operate as a Caesar within his/her particular fiefdom.
Assuming there is a conflict between the specific limitation in Section 28 (2),
Article VI of the Constitution and the general executive power of control and
supervision, the former prevails in the specific instance of safeguard measures such
as tariffs and imposts, and would thus serve to qualify the general grant to the
President of the power to exercise control and supervision over his/her subalterns.
Thus, if the Congress enacted the law so that the DTI Secretary is bound by
the Tariff Commission in the sense the former cannot impose general safeguard
measures absent a final positive determination from the latter the Court is obliged
to respect such legislative prerogative, no matter how such arrangement deviates
from traditional norms as may have been enshrined in jurisprudence. The only
ground under which such legislative determination as expressed in statute may be
successfully challenged is if such legislation contravenes the Constitution. No such
254
argument is posed by the respondents, who do not challenge the validity or
constitutionality of the SMA.
Given these premises, it is utterly reckless to examine the interrelationship
between the Tariff Commission and the DTI Secretary beyond the context of the
SMA, applying instead traditional precepts on administrative control, review and
supervision. For that reason, the Decision deemed inapplicable respondents
previous citations of Cario v. Commissioner on Human Rights and Lamb v. Phipps,
since the executive power adverted to in those cases had not been limited by
constitutional restrictions such as those imposed under Section 28(2), Article VI.[87]
A similar observation can be made on the case of Sharp International
Marketing v. Court of Appeals,[88] now cited by Philcemcor, wherein the Court
asserted that the Land Bank of the Philippines was required to exercise
independent judgment and not merely rubber-stamp deeds of sale entered into by
the Department of Agrarian Reform in connection with the agrarian reform
program. Philcemcor attempts to demonstrate that the DTI Secretary, as with the
Land Bank of the Philippines, is required to exercise independent discretion and is
not expected to just merely accede to DAR-approved compensation packages. Yet
again, such grant of independent discretion is expressly called for by statute,
particularly Section 18 of Rep. Act No. 6657 which specifically requires the joint
concurrence of the landowner and the DAR and the [Land Bank of the Philippines]
on the amount of compensation. Such power of review by the Land Bank is a
consequence of clear statutory language, as is our holding in the Decision that
Section 5 explicitly requires a positive final determination by the Tariff Commission
before a general safeguard measure may be imposed. Moreover, such limitations
under the SMA are coated by the constitutional authority of Section 28(2), Article
VI of the Constitution.
Nonetheless, is this administrative setup, as envisioned by Congress and
enshrined into the SMA, truly noxious to existing legal standards?
The Decision acknowledged the internal logic of the statutory framework,
considering that the DTI cannot exercise review powers over an agency such as the
Tariff Commission which is not within its administrative jurisdiction; that the
mechanism employed establishes a measure of check and balance involving two
government offices with different specializations; and that safeguard measures are
the exception rather than the rule, pursuant to our treaty obligations.[89]
We see no reason to deviate from these observations, and indeed can add
similarly oriented comments. Corollary to the legislative power to decree policies
through legislation is the ability of the legislature to provide for means in the
statute itself to ensure that the said policy is strictly implemented by the body or
office tasked so tasked with the duty. As earlier stated, our treaty obligations

dissuade the State for now from implementing default protectionist trade
measures such as tariffs, and allow the same only under specified conditions. [90]The
conditions enumerated under the GATT Agreement on Safeguards for the
application of safeguard measures by a member country are the same as the
requisites laid down in Section 5 of the SMA.[91] To insulate the factual
determination from political pressure, and to assure that it be conducted by an
entity especially qualified by reason of its general functions to undertake such
investigation, Congress deemed it necessary to delegate to the Tariff Commission
the function of ascertaining whether or not the those factual conditions exist to
warrant the atypical imposition of safeguard measures. After all, the Tariff
Commission retains a degree of relative independence by virtue of its attachment
to the National Economic Development Authority, an independent planning agency
of the government,[92] and also owing to its vaunted expertise and specialization.
The matter of imposing a safeguard measure almost always involves not just
one industry, but the national interest as it encompasses other industries as well.
Yet in all candor, any decision to impose a safeguard measure is susceptible to all
sorts of external pressures, especially if the domestic industry concerned is well-
organized. Unwarranted impositions of safeguard measures may similarly be
detrimental to the national interest. Congress could not be blamed if it desired to
insulate the investigatory process by assigning it to a body with a putative degree
of independence and traditional expertise in ascertaining factual conditions.
Affected industries would have cause to lobby for or against the safeguard
measures. The decision-maker is in the unenviable position of having to bend an
ear to listen to all concerned voices, including those which may speak softly but
carry a big stick. Had the law mandated that the decision be made on the sole
discretion of an executive officer, such as the DTI Secretary, it would be markedly
easier for safeguard measures to be imposed or withheld based solely on political
considerations and not on the factual conditions that are supposed to predicate the
decision.
Reference of the binding positive final determination to the Tariff
Commission is of course, not a fail-safe means to ensure a bias-free determination.
But at least the legislated involvement of the Commission in the process assures
some measure of measure of check and balance involving two different
governmental agencies with disparate specializations. There is no legal or
constitutional demand for such a setup, but its wisdom as policy should be
acknowledged. As prescribed by Congress, both the Tariff Commission and the DTI
Secretary operate within limited frameworks, under which nobody acquires an
undue advantage over the other.
We recognize that Congress deemed it necessary to insulate the process in
requiring that the factual determination to be made by an ostensibly independent
255
body of specialized competence, the Tariff Commission. This prescribed
framework, constitutionally sanctioned, is intended to prevent the baseless,
whimsical, or consideration-induced imposition of safeguard measures. It removes
from the DTI Secretary jurisdiction over a matter beyond his putative specialized
aptitude, the compilation and analysis of picayune facts and determination of their
limited causal relations, and instead vests in the Secretary the broad choice on a
matter within his unquestionable competence, the selection of what particular
safeguard measure would assist the duly beleaguered local industry yet at the
same time conform to national trade policy. Indeed, the SMA recognizes, and
places primary importance on the DTI Secretarys mandate to formulate trade
policy, in his capacity as the Presidents alter ego on trade, industry and investment-
related matters.
At the same time, the statutory limitations on this authorized power of the
DTI Secretary must prevail since the Constitution itself demands the enforceability
of those limitations and restrictions as imposed by Congress. Policy wisdom will not
save a law from infirmity if the statutory provisions violate the Constitution. But
since the Constitution itself provides that the President shall be constrained by the
limits and restrictions imposed by Congress and since these limits and restrictions
are so clear and categorical, then the Court has no choice but to uphold the reins.
Even assuming that this prescribed setup made little sense, or seemed
uncommonly silly,[93] the Court is bound by propriety not to dispute the wisdom of
the legislature as long as its acts do not violate the Constitution. Since there is no
convincing demonstration that the SMA contravenes the Constitution, the Court is
wont to respect the administrative regimen propounded by the law, even if it allots
the Tariff Commission a higher degree of puissance than normally expected. It is for
this reason that the traditional conceptions of administrative review or quasi-
judicial power cannot control in this case.
Indeed, to apply the latter concept would cause the Court to fall into a
linguistic trap owing to the multi-faceted denotations the term quasi-judicial has
come to acquire.
Under the SMA, the Tariff Commission undertakes formal
hearings,[94] receives and evaluates testimony and evidence by interested
parties,[95] and renders a decision is rendered on the basis of the evidence
presented, in the form of the final determination. The final determination requires
a conclusion whether the importation of the product under consideration is
causing serious injury or threat to a domestic industry producing like products or
directly competitive products, while evaluating all relevant factors having a bearing
on the situation of the domestic industry.[96] This process aligns conformably with
definition provided by Blacks Law Dictionary of quasi-judicial as the action,

discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence,
and draw conclusions from them, as a basis for their official action, and to exercise
discretion of a judicial nature.[97]
However, the Tariff Commission is not empowered to hear actual cases or
controversies lodged directly before it by private parties. It does not have the
power to issue writs of injunction or enforcement of its determination. These
considerations militate against a finding of quasi-judicial powers attributable to the
Tariff Commission, considering the pronouncement that quasi-judicial adjudication
would mean a determination of rights privileges and duties resulting in a decision
or order which applies to a specific situation.[98]
Indeed, a declaration that the Tariff Commission possesses quasi-judicial
powers, even if ascertained for the limited purpose of exercising its functions under
the SMA, may have the unfortunate effect of expanding the Commissions powers
beyond that contemplated by law. After all, the Tariff Commission is by convention,
a fact-finding body, and its role under the SMA, burdened as it is with factual
determination, is but a mere continuance of this tradition. However, Congress
through the SMA offers a significant deviation from this traditional role by tying the
decision by the DTI Secretary to impose a safeguard measure to the required
positive factual determination by the Tariff Commission. Congress is not bound by
past traditions, or even by the jurisprudence of this Court, in enacting legislation it
may deem as suited for the times. The sole benchmark for judicial substitution of
congressional wisdom is constitutional transgression, a standard which the
respondents do not even attempt to match.
Respondents Suggested Interpretation
Of the SMA Transgresses Fair Play
Respondents have belabored the argument that the Decisions interpretation
of the SMA, particularly of the role of the Tariff Commission vis--vis the DTI
Secretary, is noxious to traditional notions of administrative control and
supervision. But in doing so, they have failed to acknowledge the congressional
prerogative to redefine administrative relationships, a license which falls within the
plenary province of Congress under our representative system of democracy.
Moreover, respondents own suggested interpretation falls wayward of
expectations of practical fair play.
Adopting respondents suggestion that the DTI Secretary may disregard the
factual findings of the Tariff Commission and investigatory process that preceded it,
256
it would seem that the elaborate procedure undertaken by the Commission under
the SMA, with all the attendant guarantees of due process, is but an inutile
spectacle. As Justice Garcia noted during the oral arguments, why would the DTI
Secretary bother with the Tariff Commission and instead conduct the investigation
himself.[99]
Certainly, nothing in the SMA authorizes the DTI Secretary, after making the
preliminary determination, to personally oversee the investigation, hear out the
interested parties, or receive evidence.[100] In fact, the SMA does not even require
the Tariff Commission, which is tasked with the custody of the submitted
evidence,[101] to turn over to the DTI Secretary such evidence it had evaluated in
order to make its factual determination.[102] Clearly, as Congress tasked it to be, it is
the Tariff Commission and not the DTI Secretary which acquires the necessary
intimate acquaintance with the factual conditions and evidence necessary for the
imposition of the general safeguard measure. Why then favor an interpretation of
the SMA that leaves the findings of the Tariff Commission bereft of operative effect
and makes them subservient to the wishes of the DTI Secretary, a personage with
lesser working familiarity with the relevant factual milieu? In fact, the bare theory
of the respondents would effectively allow the DTI Secretary to adopt, under the
subterfuge of his discretion, the factual determination of a private investigative
group hired by the industry concerned, and reject the investigative findings of the
Tariff Commission as mandated by the SMA. It would be highly irregular to
substitute what the law clearly provides for a dubious setup of no statutory basis
that would be readily susceptible to rank chicanery.
Moreover, the SMA guarantees the right of all concerned parties to be heard,
an elemental requirement of due process, by the Tariff Commission in the context
of its investigation. The DTI Secretary is not similarly empowered or tasked to hear
out the concerns of other interested parties, and if he/she does so, it arises purely
out of volition and not compulsion under law.
Indeed, in this case, it is essential that the position of other than that of the
local cement industry should be given due consideration, cement being an
indispensable need for the operation of other industries such as housing and
construction. While the general safeguard measures may operate to the better
interests of the domestic cement industries, its deprivation of cheaper cement
imports may similarly work to the detriment of these other domestic industries and
correspondingly, the national interest. Notably, the Tariff Commission in this case
heard the views on the application of representatives of other allied industries such
as the housing, construction, and cement-bag industries, and other interested
parties such as consumer groups and foreign governments.[103] It is only before the
Tariff Commission that their views had been heard, and this is because it is only the
Tariff Commission which is empowered to hear their positions. Since due process

requires a judicious consideration of all relevant factors, the Tariff Commission,
which is in a better position to hear these parties than the DTI Secretary, is similarly
more capable to render a determination conformably with the due process
requirements than the DTI Secretary.
In a similar vein, Southern Cross aptly notes that in instances when it is the
DTI Secretary who initiates motu proprio the application for the safeguard measure
pursuant to Section 6 of the SMA, respondents suggested interpretation would
result in the awkward situation wherein the DTI Secretary would rule upon his own
application after it had been evaluated by the Tariff Commission. Pertinently cited
is our ruling in Corona v. Court of Appeals[104] that no man can be at once a litigant
and judge.[105] Certainly, this anomalous situation is avoided if it is the Tariff
Commission which is tasked with arriving at the final determination whether the
conditions exist to warrant the general safeguard measures. This is the setup
provided for by the express provisions of the SMA, and the problem would arise
only if we adopt the interpretation urged upon by respondents.
The Possibility for Administrative Review
Of the Tariff Commissions Determination
The Court has been emphatic that a positive final determination from the
Tariff Commission is required in order that the DTI Secretary may impose a general
safeguard measure, and that the DTI Secretary has no power to exercise control
and supervision over the Tariff Commission and its final determination. These
conclusions are the necessary consequences of the applicable provisions of the
Constitution, the SMA, and laws such as the Administrative Code. However, the law
is silent though on whether this positive final determination may otherwise be
subjected to administrative review.
There is no evident legislative intent by the authors of the SMA to provide for
a procedure of administrative review. If ever there is a procedure for
administrative review over the final determination of the Tariff Commission, such
procedure must be done in a manner that does not contravene or disregard
legislative prerogatives as expressed in the SMA or the Administrative Code, or
fundamental constitutional limitations.
In order that such procedure of administrative review would not contravene
the law and the constitutional scheme provided by Section 28(2), Article VI, it is
essential to assert that the positive final determination by the Tariff Commission is
indispensable as a requisite for the imposition of a general safeguard measure. The
submissions of private respondents and the Separate Opinion cannot be sustained
257
insofar as they hold that the DTI Secretary can peremptorily ignore or disregard the
determinations made by the Tariff Commission. However, if the mode of
administrative review were in such a manner that the administrative superior of
the Tariff Commission were to modify or alter its determination, then such reversal
may still be valid within the confines of Section 5 of the SMA, for technically it is
still the Tariff Commissions determination, administratively revised as it may be,
that would serve as the basis for the DTI Secretarys action.
However, and fatally for the present petitions, such administrative review
cannot be conducted by the DTI Secretary. Even if conceding that the Tariff
Commissions findings may be administratively reviewed, the DTI Secretary has no
authority to review or modify the same. We have been emphatic on the reasons
such as that there is no traditional or statutory basis placing the Commission under
the control and supervision of the DTI; that to allow such would contravene due
process, especially if the DTI itself were to apply for the safeguard measures motu
proprio. To hold otherwise would destroy the administrative hierarchy, contravene
constitutional due process, and disregard the limitations or restrictions provided in
the SMA.
Instead, assuming administrative review were available, it is the NEDA that
may conduct such review following the principles of administrative law, and the
NEDAs decision in turn is reviewable by the Office of the President. The decision of
the Office of the President then effectively substitutes as the determination of the
Tariff Commission, which now forms the basis of the DTI Secretarys decision, which
now would be ripe for judicial review by the CTA under Section 29 of the SMA. This
is the only way that administrative review of the Tariff Commissions determination
may be sustained without violating the SMA and its constitutional restrictions and
limitations, as well as administrative law.
In bare theory, the NEDA may review, alter or modify the Tariff Commissions
final determination, the Commission being an attached agency of the NEDA.
Admittedly, there is nothing in the SMA or any other statute that would prevent
the NEDA to exercise such administrative review, and successively, for the
President to exercise in turn review over the NEDAs decision.
Nonetheless, in acknowledging this possibility, the Court, without denigrating
the bare principle that administrative officers may exercise control and supervision
over the acts of the bodies under its jurisdiction, realizes that this comes at the
expense of a speedy resolution to an application for a safeguard measure, an
application dependent on fluctuating factual conditions. The further delay would
foster uncertainty and insecurity within the industry concerned, as well as with all
other allied industries, which in turn may lead to some measure of economic
damage. Delay is certain, since judicial review authorized by law and not

administrative review would have the final say. The fact that the SMA did not
expressly prohibit administrative review of the final determination of the Tariff
Commission does not negate the supreme advantages of engendering exclusive
judicial review over questions arising from the imposition of a general safeguard
measure.
In any event, even if we conceded the possibility of administrative review of
the Tariff Commissions final determination by the NEDA, such would not deny
merit to the present petition. It does not change the fact that the Court of Appeals
erred in ruling that the DTI Secretary was not bound by the negative final
determination of the Tariff Commission, or that the DTI Secretary acted without
jurisdiction when he imposed general safeguard measures despite the absence of
the statutory positive final determination of the Commission.
IV. Courts Interpretation of SMA
In Harmony with Other
Constitutional Provisions
In response to our citation of Section 28(2), Article VI, respondents elevate
two arguments grounded in constitutional law. One is based on another
constitutional provision, Section 12, Article XIII, which mandates that [t]he State
shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods and adopt measures that help make them competitive. By no
means does this provision dictate that the Court favor the domestic industry in all
competing claims that it may bring before this Court. If it were so, judicial
proceedings in this country would be rendered a mockery, resolved as they would
be, on the basis of the personalities of the litigants and not their legal positions.
Moreover, the duty imposed on by Section 12, Article XIII falls primarily with
Congress, which in that regard enacted the SMA, a law designed to protect
domestic industries from the possible ill-effects of our accession to the global trade
order. Inconveniently perhaps for respondents, the SMA also happens to provide
for a procedure under which such protective measures may be enacted. The Court
cannot just impose what it deems as the spirit of the law without giving due regard
to its letter.
In like-minded manner, the Separate Opinion loosely states that the purpose
of the SMA is to protect or safeguard local industries from increased importation of
foreign products.[106]This inaccurately leaves the impression that the SMA ipso
facto unravels a protective cloak that shelters all local industries and producers, no
matter the conditions. Indeed, our country has knowingly chosen to accede to the
258
world trade regime, as expressed in the GATT and WTO Agreements, despite the
understanding that local industries might suffer ill-effects, especially with the
easier entry of competing foreign products. At the same time, these international
agreements were designed to constrict protectionist trade policies by its member-
countries. Hence, the median, as expressed by the SMA, does allow for the
application of protectionist measures such as tariffs, but only after an elaborate
process of investigation that ensures factual basis and indispensable need for such
measures. More accurately, the purpose of the SMA is to provide a process for the
protection or safeguarding of domestic industries that have duly established that
there is substantial injury or threat thereof directly caused by the increased
imports. In short, domestic industries are not entitled to safeguard measures as a
matter of right or influence.
Respondents also make the astounding argument that the imposition of
general safeguard measures should not be seen as a taxation measure, but instead
as an exercise of police power. The vain hope of respondents in divorcing the
safeguard measures from the concept of taxation is to exclude from consideration
Section 28(2), Article VI of the Constitution.
This argument can be debunked at length, but it deserves little attention. The
motivation behind many taxation measures is the implementation of police power
goals. Progressive income taxes alleviate the margin between rich and poor; the so-
called sin taxes on alcohol and tobacco manufacturers help dissuade the
consumers from excessive intake of these potentially harmful products. Taxation is
distinguishable from police power as to the means employed to implement these
public good goals. Those doctrines that are unique to taxation arose from peculiar
considerations such as those especially punitive effects of taxation,[107] and the
belief that taxes are the lifeblood of the state.[108] These considerations
necessitated the evolution of taxation as a distinct legal concept from police
power. Yet at the same time, it has been recognized that taxation may be made the
implement of the states police power.[109]
Even assuming that the SMA should be construed exclusively as a police
power measure, the Court recognizes that police power is lodged primarily in the
national legislature, though it may also be exercised by the executive branch by
virtue of a valid delegation of legislative power.[110] Considering these premises, it is
clear that police power, however illimitable in theory, is still exercised within the
confines of implementing legislation. To declare otherwise is to sanction rule by
whim instead of rule of law. The Congress, in enacting the SMA, has delegated the
power to impose general safeguard measures to the executive branch, but at the
same time subjected such imposition to limitations, such as the requirement of a
positive final determination by the Tariff Commission under Section 5. For the
executive branch to ignore these boundaries imposed by Congress is to set up an

ignoble clash between the two co-equal branches of government. Considering that
the exercise of police power emanates from legislative authority, there is little
question that the prerogative of the legislative branch shall prevail in such a clash.
V. Assailed Decision Consistent
With Ruling in Taada v. Angara
Public respondents allege that the Decision is contrary to our holding
in Taada v. Angara,[111] since the Court noted therein that the GATT itself provides
built-in protection from unfair foreign competition and trade practices, which
according to the public respondents, was a reason why the Honorable [Court] ruled
the way it did. On the other hand, the Decision eliminates safeguard measures as a
mode of defense.
This is balderdash, as with any and all claims that the Decision allows foreign
industries to ride roughshod over our domestic enterprises. The Decision does not
prohibit the imposition of general safeguard measures to protect domestic
industries in need of protection. All it affirms is that the positive final
determination of the Tariff Commission is first required before the general
safeguard measures are imposed and implemented, a neutral proposition that
gives no regard to the nationalities of the parties involved. A positive
determination by the Tariff Commission is hardly the elusive Shangri-la of
administrative law. If a particular industry finds it difficult to obtain a positive final
determination from the Tariff Commission, it may be simply because the industry is
still sufficiently competitive even in the face of foreign competition. These
safeguard measures are designed to ensure salvation, not avarice.
Respondents well have the right to drape themselves in the colors of the flag.
Yet these postures hardly advance legal claims, or nationalism for that matter. The
fineries of the costume pageant are no better measure of patriotism than simple
obedience to the laws of the Fatherland. And even assuming that respondents are
motivated by genuine patriotic impulses, it must be remembered that under the
setup provided by the SMA, it is the facts, and not impulse, that determine
whether the protective safeguard measures should be imposed. As once orated,
facts are stubborn things; and whatever may be our wishes, our inclinations, or the
dictates of our passions, they cannot alter the state of facts and evidence. [112]
It is our goal as judges to enforce the law, and not what we might deem as
correct economic policy. Towards this end, we should not construe the SMA to
unduly favor or disfavor domestic industries, simply because the law itself provides
for a mechanism by virtue of which the claims of these industries are thoroughly
259
evaluated before they are favored or disfavored. What we must do is to simply
uphold what the law says. Section 5 says that the DTI Secretary shall impose the
general safeguard measures upon the positive final determination of the Tariff
Commission. Nothing in the whereas clauses or the invisible ink provisions of the
SMA can magically delete the words positive final determination and Tariff
Commission from Section 5.
VI. On Forum-Shopping
We remain convinced that there was no willful and deliberate forum-
shopping in this case by Southern Cross. The causes of action that animate this
present petition for review and the petition for review with the CTA are distinct
from each other, even though they relate to similar factual antecedents. Yet it also
appears that contrary to the undertaking signed by the President of Southern
Cross, Hironobu Ryu, to inform this Court of any similar action or proceeding
pending before any court, tribunal or agency within five (5) days from knowledge
thereof, Southern Cross informed this Court only on 12 August 2003 of the petition
it had filed with the CTA eleven days earlier. An appropriate sanction is warranted
for such failure, but not the dismissal of the petition.
VII. Effects of Courts Resolution
Philcemcor argues that the granting of Southern Crosss Petition should not
necessarily lead to the voiding of the Decision of the DTI Secretary dated 5 August
2003 imposing the general safeguard measures. For Philcemcor, the availability of
appeal to the CTA as an available and adequate remedy would have made the
Court of Appeals Decision merely erroneous or irregular, but not void. Moreover,
the said Decision merely required the DTI Secretary to render a decision, which
could have very well been a decision not to impose a safeguard measure; thus, it
could not be said that the annulled decision resulted from the judgment of the
Court of Appeals.
The Court of Appeals Decision was annulled precisely because the appellate
court did not have the power to rule on the petition in the first place. Jurisdiction is
necessarily the power to decide a case, and a court which does not have the power
to adjudicate a case is one that is bereft of jurisdiction. We find no reason to
disturb our earlier finding that the Court of Appeals Decision is null and void.

At the same time, the Court in its Decision paid particular heed to the
peculiarities attaching to the 5 August 2003 Decision of the DTI Secretary. In the
DTI Secretarys Decision, he expressly stated that as a result of the Court of
Appeals Decision, there is no legal impediment for the Secretary to decide on the
application. Yet the truth remained that there was a legal impediment, namely,
that the decision of the appellate court was not yet final and executory. Moreover,
it was declared null and void, and since the DTI Secretary expressly denominated
the Court of Appeals Decision as his basis for deciding to impose the safeguard
measures, the latter decision must be voided as well. Otherwise put, without the
Court of Appeals Decision, the DTI Secretarys Decision of 5 August 2003 would not
have been rendered as well.
Accordingly, the Court reaffirms as a nullity the DTI Secretarys Decision dated
5 August 2003. As a necessary consequence, no further action can be taken on
Philcemcors Petition for Extension of the Safeguard Measure. Obviously, if the
imposition of the general safeguard measure is void as we declared it to be, any
extension thereof should likewise be fruitless. The proper remedy instead is to file
a new application for the imposition of safeguard measures, subject to the
conditions prescribed by the SMA. Should this step be eventually availed of, it is
only hoped that the parties involved would content themselves in observing the
proper procedure, instead of making a mockery of the rule of law.
WHEREFORE, respondents Motions for Reconsideration are DENIED WITH
FINALITY.
Respondent DTI Secretary is hereby ENJOINED from taking any further action
on the pending Petition for Extension of the Safeguard Measure.
Hironobu Ryu, President of petitioner Southern Cross Cement Corporation,
and Angara Abello Concepcion Regala & Cruz, counsel petitioner, are hereby given
FIVE (5) days from receipt of this Resolution to EXPLAIN why they should not be
meted disciplinary sanction for failing to timely inform the Court of the filing of
Southern Crosss Petition for Review with the Court of Tax Appeals, as adverted to
earlier in this Resolution.
SO ORDERED.
Facts:
Republic Act No. 8800, the Safeguard Measures Act (SMA), which was one of the
laws enacted by Congress soon after the Philippines ratified the General
Agreement on Tariff and Trade (GATT) and the World Trade Organization (WTO)
Agreement.[3] The SMA provides the structure and mechanics for the imposition of
emergency measures, including tariffs, to protect domestic industries and
260
producers from increased imports which inflict or could inflict serious injury on
them.
Petitioner Southern Cross Cement Corporation (Southern Cross) is a domestic
corporation engaged in the business of cement manufacturing, production,
importation and exportation. Its principal stockholders are Taiheiyo Cement
Corporation and Tokuyama Corporation, purportedly the largest cement
manufacturers in Japan.[5]
Private respondent Philippine Cement Manufacturers Corporation[6] (Philcemcor)
is an association of domestic cement manufacturers. It has eighteen (18)
members,[7] per Record. While Philcemcor heralds itself to be an association of
domestic cement manufacturers, it appears that considerable equity holdings, if
not controlling interests in at least twelve (12) of its member-corporations, were
acquired by the three largest cement manufacturers in the world, namely
Financiere Lafarge S.A. of France, Cemex S.A. de C.V. of Mexico, and Holcim Ltd. of
Switzerland (formerly Holderbank Financiere Glaris, Ltd., then Holderfin B.V.).
the DTIs disagreement with the conclusions of the Tariff Commission, but at the
same time, ultimately denying Philcemcors application for safeguard measures on
the ground that the he was bound to do so in light of the Tariff Commissions
negative findings.
Philcemcor challenged this Decision of the DTI Secretary by filing with the Court of
Appeals a Petition for Certiorari, Prohibition and Mandamus[11] seeking to set
aside the DTI Decision, as well as the Tariff Commissions Report. The Court of
Appeals Twelfth Division, in a Decision[13] penned by Court of Appeals Associate
Justice Elvi John Asuncion,[14] partially granted Philcemcors petition.
On 23 June 2003, Southern Cross filed the present petition, arguing that the Court
of Appeals has no jurisdiction over Philcemcors petition, as the proper remedy is a
petition for review with the CTA conformably with the SMA, and; that the factual
findings of the Tariff Commission on the existence or non-existence of conditions
warranting the imposition of general safeguard measures are binding upon the DTI
Secretary.

Despite the fact that the Court of Appeals Decision had not yet become final, its
binding force was cited by the DTI Secretary when he issued a new Decision on 25
June 2003, wherein he ruled that that in light of the appellate courts Decision,
there was no longer any legal impediment to his deciding Philcemcors application
for definitive safeguard measures.
The Court of Appeals had held that based on the foregoing premises, petitioner’s
prayer to set aside the findings of the Tariff Commission in its assailed Report dated
March 13, 2002 is DENIED. On the other hand, the assailed April 5, 2002 Decision of
the Secretary of the Department of Trade and Industry is hereby SET ASIDE.
Consequently, the case is REMANDED to the public respondent Secretary of
Department of Trade and Industry for a final decision in accordance with RA 8800
and its Implementing Rules and Regulations. Hence, the appeal.
Yet on 25 June 2003, the DTI Secretary issued a new Decision, ruling this time that
that in light of the appellate courts Decision there was no longer any legal
impediment to his deciding Philcemcors application for definitive safeguard
measures.[41] He made a determination that, contrary to the findings of the Tariff
Commission, the local cement industry had suffered serious injury as a result of the
import surges.[42] Accordingly, he imposed a definitive safeguard measure on the
importation of gray Portland cement, in the form of a definitive safeguard duty in
the amount of P20.60/40 kg. bag for three years on imported gray Portland
Cement. Hence, the appeal.
Issue: Whether or not the decision of DTI Secretary, to impose safeguard measures
is valid.
Held:
NO, due to the nature of this case, the Court found that the DTI should follow the
regulations prescribed by SMA. The Court held that he assailed Decision of the
Court of Appeals is DECLARED NULL AND VOID and SET ASIDE. The Decision of the
DTI Secretary dated 25 June 2003 is also DECLARED NULL AND VOID and SET ASIDE.
No Costs.
Yet on 25 June 2003, the DTI Secretary issued a new Decision, ruling this time that
that in light of the appellate courts Decision there was no longer any legal
impediment to his deciding Philcemcors application for definitive safeguard
261
measures.[41] He made a determination that, contrary to the findings of the Tariff
Commission, the local cement industry had suffered serious injury as a result of the
import surges.[42] Accordingly, he imposed a definitive safeguard measure on the
importation of gray Portland cement, in the form of a definitive safeguard duty in
the amount of P20.60/40 kg. bag for three years on imported gray Portland
Cement.
FACTS: Petitioner Southern Cross Cement Corporation (Southern Cross) is a
domestic corporation engaged in the business of cement manufacturing,
production, importation and exportation. Private respondent Philippine Cement
Manufacturers Corporation (Philcemcor) is an association of domestic cement
manufacturers. DTI accepted an application from Philcemcor, alleging that the
importation of gray Portland cement in increased quantities has caused declines in
domestic production, capacity utilization, market share, sales and employment; as
well as caused depressed local prices. Accordingly, Philcemcor sought the
imposition a definitive safeguard measures on the import of cement pursuant to
the Safeguard Measures Act.
The Tariff Commission received a request from the DTI for a formal investigation to
determine whether or not to impose a definitive safeguard measure on imports of
gray Portland cement
Tariff Commission’s report: The elements of serious injury and imminent threat of
serious injury not having been established, it is hereby recommended that no
definitive general safeguard measure be imposed on the importation of gray
Portland cement
After reviewing the report, then DTI Secretary Manuel Roxas II (DTI Secretary)
disagreed with the conclusion of the Tariff Commission that there was no serious
injury to the local cement industry caused by the surge of imports. In view of this
disagreement, the DTI requested an opinion from the Department of Justice (DOJ)
on the DTI Secretarys scope of options in acting on the Commissions
recommendations.
Subsequently, then DOJ Secretary Hernando Perez rendered an opinion stating that
Section 13 of the SMA precluded a review by the DTI Secretary of the Tariff
Commissions negative finding, or finding that a definitive safeguard measure
 262

should not be imposed. DTI then denied application for safeguard measures against
the importation of gray Portland cement
Philcemcor received a copy of the DTI Decision on 12 April 2002. Ten days later, it
filed with the Court of Appeals a Petition for Certiorari, Prohibition and Mandamus
seeking to set aside the DTI Decision, as well as the Tariff Commissions Report. On
the other hand, Southern Cross filed its Comment arguing that the Court of Appeals
had no jurisdiction over Philcemcors Petition, for it is on the Court of Tax Appeals
(CTA) that the SMA conferred jurisdiction to review rulings of the Secretary in
connection with the imposition of a safeguard measure.
ISSUE: Whether or not the CA has jurisdiction over the case which is concerned
with imposition of safeguard measures
RULING:
CTA has jurisdiction. Under Section 29 of the SMA, there are three requisites to
enable the CTA to acquire jurisdiction over the petition for review contemplated
therein: (i) there must be a ruling by the DTI Secretary; (ii) the petition must be
filed by an interested party adversely affected by the ruling; and (iii) such ruling
must be in connection with the imposition of a safeguard measure. The first two
requisites are clearly present. The third requisite deserves closer scrutiny.
other hand, that neither did the law expressly grant to the CTA the power to review
a negative determination. However, under the clear text of the law, the CTA is
vested with jurisdiction to review the ruling of the DTI Secretary in connection with
the imposition of a safeguard measure. Had the law been couched instead to
incorporate the phrase the ruling imposing a safeguard measure, then respondents
claim would have indisputable merit. Undoubtedly, the phrase in connection with
not only qualifies but clarifies the succeeding phrase imposition of a safeguard
measure. As expounded later, the phrase also encompasses the opposite or
converse ruling which is the non-imposition of a safeguard measure.
Third. Interpretatio Talis In Ambiguis Semper Fienda Est, Ut Evitur Inconveniens Et
Absurdum.
Even assuming arguendo that Section 29 has not expressly granted the CTA
jurisdiction to review a negative ruling of the DTI Secretary, the Court is precluded
from favoring an interpretation that would cause inconvenience and absurdity.
Adopting the respondents position favoring the CTAs minimal jurisdiction would
unnecessarily lead to illogical and onerous results.

Contrary to the stance of the public respondents and Philcemcor, in this case
where the DTI Secretary decides not to impose a safeguard measure, it is the CTA
which has jurisdiction to review his decision. The reasons are as follows:

First. Split jurisdiction is abhorred. The law expressly confers on the CTA, the
tribunal with the specialized competence over tax and tariff matters, the role of
judicial review without mention of any other court that may exercise corollary or
ancillary jurisdiction in relation to the SMA.

Second. The interpretation of the provisions of the SMA favors vesting

untrammeled appellate jurisdiction on the CTA.

A plain reading of Section 29 of the SMA reveals that Congress did not expressly
bar the CTA from reviewing a negative determination by the DTI Secretary nor
conferred on the Court of Appeals such review authority. Respondents note, on the

EN BANC
G.R. No. 177597 July 16, 2008
BAI SANDRA S. A. SEMA, Petitioner,
vs.
COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.
DECISION
CARPIO, J.:
The Case
These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May
2007, of the Commission on Elections (COMELEC) treating Cotabato City as part of
the legislative district of the Province of Shariff Kabunsuan.2
The Facts
The Ordinance appended to the 1987 Constitution apportioned two legislative
districts for the Province of Maguindanao. The first legislative district consists of
Cotabato City and eight municipalities.3 Maguindanao forms part of the
Autonomous Region in Muslim Mindanao (ARMM), created under its Organic Act,
Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA
9054).4 Although under the Ordinance, Cotabato City forms part of Maguindanao’s
first legislative district, it is not part of the ARMM but of Region XII, having voted
against its inclusion in the ARMM in the plebiscite held in November 1989.
On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly,
exercising its power to create provinces under Section 19, Article VI of RA
9054,5 enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating
the Province of Shariff Kabunsuan composed of the eight municipalities in the first
district of Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan,
Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated
from the Province of Maguindanao and constituted into a distinct and independent
263
province, which is hereby created, to be known as the Province of Shariff
Kabunsuan.
Sec. 5. The corporate existence of this province shall commence upon the
appointment by the Regional Governor or election of the governor and majority of
the regular members of the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the Province of Maguindanao shall
continue to serve their unexpired terms in the province that they will choose or
where they are residents: Provided, that where an elective position in both
provinces becomes vacant as a consequence of the creation of the Province of
Shariff Kabunsuan, all incumbent elective provincial officials shall have preference
for appointment to a higher elective vacant position and for the time being be
appointed by the Regional Governor, and shall hold office until their successors
shall have been elected and qualified in the next local elections; Provided, further,
that they shall continue to receive the salaries they are receiving at the time of the
approval of this Act until the new readjustment of salaries in accordance with law.
Provided, furthermore, that there shall be no diminution in the number of the
members of the Sangguniang Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative district, which
includes Cotabato as a part thereof, shall remain.
Later, three new municipalities6 were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11.
Thus, what was left of Maguindanao were the municipalities constituting its second
legislative district. Cotabato City, although part of Maguindanao’s first legislative
district, is not part of the Province of Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a plebiscite
held on 29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed
Resolution No. 3999 requesting the COMELEC to "clarify the status of Cotabato City
in view of the conversion of the First District of Maguindanao into a regular
province" under MMA Act 201.
In answer to Cotabato City’s query, the COMELEC issued Resolution No. 07-0407 on
6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District of Maguindanao." Resolution No. 07-

0407, which adopted the recommendation of the COMELEC’s Law Department
under a Memorandum dated 27 February 2007,7 provides in pertinent parts:
Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to
adopt the recommendation of the Law Department that pending the enactment of
the appropriate law by Congress, to maintain the status quo with Cotabato City as
part of Shariff Kabunsuan in the First Legislative District of Maguindanao.
(Emphasis supplied)
However, in preparation for the 14 May 2007 elections, the COMELEC promulgated
on 29 March 2007 Resolution No. 7845 stating that Maguindanao’s first legislative
district is composed only of Cotabato City because of the enactment of MMA Act
201.8
On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these
petitions, amending Resolution No. 07-0407 by renaming the legislative district in
question as "Shariff Kabunsuan Province with Cotabato City (formerly First District
of Maguindanao with Cotabato City)."91avvphi1
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for
Representative of "Shariff Kabunsuan with Cotabato City," prayed for the
nullification of COMELEC Resolution No. 7902 and the exclusion from canvassing of
the votes cast in Cotabato City for that office. Sema contended that Shariff
Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article
VI of the Constitution10 and Section 3 of the Ordinance appended to the
Constitution.11 Thus, Sema asserted that the COMELEC acted without or in excess
of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in
Maguindanao’s first legislative district despite the COMELEC’s earlier directive in
Resolution No. 7845 designating Cotabato City as the lone component of
Maguindanao’s reapportioned first legislative district.12 Sema further claimed that
in issuing Resolution No. 7902, the COMELEC usurped Congress’ power to create or
reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor General (OSG),
chose not to reach the merits of the case and merely contended that (1) Sema
wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902
because the COMELEC issued the same in the exercise of its administrative, not
quasi-judicial, power and (2) Sema’s prayer for the writ of prohibition in G.R. No.
177597 became moot with the proclamation of respondent Didagen P. Dilangalen
(respondent Dilangalen) on 1 June 2007 as representative of the legislative district
of Shariff Kabunsuan Province with Cotabato City.
264
In his Comment, respondent Dilangalen countered that Sema is estopped from
questioning COMELEC Resolution No. 7902 because in her certificate of candidacy
filed on 29 March 2007, Sema indicated that she was seeking election as
representative of "Shariff Kabunsuan including Cotabato City." Respondent
Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it
did not apportion a legislative district for Shariff Kabunsuan or reapportion the
legislative districts in Maguindanao but merely renamed Maguindanao’s first
legislative district. Respondent Dilangalen further claimed that the COMELEC could
not reapportion Maguindanao’s first legislative district to make Cotabato City its
sole component unit as the power to reapportion legislative districts lies exclusively
with Congress, not to mention that Cotabato City does not meet the minimum
population requirement under Section 5 (3), Article VI of the Constitution for the
creation of a legislative district within a city.13
Sema filed a Consolidated Reply controverting the matters raised in respondents’
Comments and reiterating her claim that the COMELEC acted ultra vires in issuing
Resolution No. 7902.
In the Resolution of 4 September 2007, the Court required the parties in G.R. No.
177597 to comment on the issue of whether a province created by the ARMM
Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law
creating a legislative district for such new province. The parties submitted their
compliance as follows:
(1) Sema answered the issue in the affirmative on the following grounds:
(a) the Court in Felwa v. Salas14stated that "when a province is created by
statute, the corresponding representative district comes into existence
neither by authority of that statute — which cannot provide otherwise —
nor by apportionment, but by operation of the Constitution, without a
reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160)
"affirms" the apportionment of a legislative district incident to the
creation of a province; and (c) Section 5 (3), Article VI of the Constitution
and Section 3 of the Ordinance appended to the Constitution mandate
the apportionment of a legislative district in newly created provinces.
(2) The COMELEC, again represented by the OSG, apparently abandoned
its earlier stance on the propriety of issuing Resolution Nos. 07-0407 and
7902 and joined causes with Sema, contending that Section 5 (3), Article
VI of the Constitution is "self-executing." Thus, every new province
created by the ARMM Regional Assembly is ipso facto entitled to one

representative in the House of Representatives even in the absence of a
national law; and
(3) Respondent Dilangalen answered the issue in the negative on the
following grounds: (a) the "province" contemplated in Section 5 (3),
Article VI of the Constitution is one that is created by an act of Congress
taking into account the provisions in RA 7160 on the creation of
provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM
Regional Assembly the power to enact measures relating to national
elections, which encompasses the apportionment of legislative districts
for members of the House of Representatives; (c) recognizing a legislative
district in every province the ARMM Regional Assembly creates will lead
to the disproportionate representation of the ARMM in the House of
Representatives as the Regional Assembly can create provinces without
regard to the requirements in Section 461 of RA 7160; and (d) Cotabato
City, which has a population of less than 250,000, is not entitled to a
representative in the House of Representatives.
On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral
arguments on the following issues: (1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to create provinces, is
constitutional; and (2) if in the affirmative, whether a province created under
Section 19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district for
such new province.15
In compliance with the Resolution dated 27 November 2007, the parties in G.R. No.
177597 filed their respective Memoranda on the issues raised in the oral
arguments.16 On the question of the constitutionality of Section 19, Article VI of RA
9054, the parties in G.R. No. 177597 adopted the following positions:
(1) Sema contended that Section 19, Article VI of RA 9054 is
constitutional (a) as a valid delegation by Congress to the ARMM of the
power to create provinces under Section 20 (9), Article X of the
Constitution granting to the autonomous regions, through their organic
acts, legislative powers over "other matters as may be authorized by law
for the promotion of the general welfare of the people of the region" and
(b) as an amendment to Section 6 of RA 7160.17 However, Sema concedes
that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the
ARMM Regional Assembly of the power to "prescribe standards lower
than those mandated" in RA 7160 in the creation of provinces
265
contravenes Section 10, Article X of the Constitution.18 Thus, Sema
proposed that Section 19 "should be construed as prohibiting the
Regional Assembly from prescribing standards x x x that do not comply
with the minimum criteria" under RA 7160.19
(2) Respondent Dilangalen contended that Section 19, Article VI of RA
9054 is unconstitutional on the following grounds: (a) the power to
create provinces was not among those granted to the autonomous
regions under Section 20, Article X of the Constitution and (b) the grant
under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly
of the power to prescribe standards lower than those mandated in
Section 461 of RA 7160 on the creation of provinces contravenes Section
10, Article X of the Constitution and the Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent
Dilangalen (thus effectively abandoning the position the COMELEC
adopted in its Compliance with the Resolution of 4 September 2007) and
contended that Section 19, Article VI of RA 9054 is unconstitutional
because (a) it contravenes Section 10 and Section 6,20 Article X of the
Constitution and (b) the power to create provinces was withheld from
the autonomous regions under Section 20, Article X of the Constitution.
On the question of whether a province created under Section 19, Article VI of RA
9054 is entitled to one representative in the House of Representatives without
need of a national law creating a legislative district for such new province, Sema
and respondent Dilangalen reiterated in their Memoranda the positions they
adopted in their Compliance with the Resolution of 4 September 2007. The
COMELEC deemed it unnecessary to submit its position on this issue considering its
stance that Section 19, Article VI of RA 9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was disclosed during the oral
arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the
Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in
G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in
issuing Resolution No. 7902 depriving the voters of Cotabato City of a
representative in the House of Representatives. In its Comment to the petition in
G.R. No. 178628, the COMELEC, through the OSG, maintained the validity of
COMELEC Resolution No. 7902 as a temporary measure pending the enactment by
Congress of the "appropriate law."
The Issues

The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and Mandamus
are proper to test the constitutionality of COMELEC Resolution
No. 7902; and
(2) whether the proclamation of respondent Dilangalen as
representative of Shariff Kabunsuan Province with Cotabato
City mooted the petition in G.R. No. 177597.
(B) On the merits –
(1) whether Section 19, Article VI of RA 9054, delegating to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the
ARMM Regional Assembly under MMA Act 201 pursuant to
Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of
a national law creating a legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution
No. 7902 is valid for maintaining the status quo in the first legislative
district of Maguindanao (as "Shariff Kabunsuan Province with Cotabato
City [formerly First District of Maguindanao with Cotabato City]"), despite
the creation of the Province of Shariff Kabunsuan out of such district
(excluding Cotabato City).
The Ruling of the Court
The petitions have no merit. We rule that (1) Section 19, Article VI of RA
9054 is unconstitutional insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities; (2) MMA Act 201
266
creating the Province of Shariff Kabunsuan is void; and (3) COMELEC
Resolution No. 7902 is valid.
On the Preliminary Matters
The Writ of Prohibition is Appropriate to Test the Constitutionality of Election
Laws, Rules and Regulations
The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any
tribunal, board, or officer exercising judicial or quasi-judicial functions."21 On the
other hand, the writ of Mandamus will issue to compel a tribunal, corporation,
board, officer, or person to perform an act "which the law specifically enjoins as a
duty."22 True, the COMELEC did not issue Resolution No. 7902 in the exercise of its
judicial or quasi-judicial functions.23 Nor is there a law which specifically enjoins the
COMELEC to exclude from canvassing the votes cast in Cotabato City for
representative of "Shariff Kabunsuan Province with Cotabato City." These,
however, do not justify the outright dismissal of the petition in G.R. No. 177597
because Sema also prayed for the issuance of the writ of Prohibition and we have
long recognized this writ as proper for testing the constitutionality of election laws,
rules, and regulations.24
Respondent Dilangalen’s Proclamation Does Not Moot the Petition
There is also no merit in the claim that respondent Dilangalen’s proclamation as
winner in the 14 May 2007 elections for representative of "Shariff Kabunsuan
Province with Cotabato City" mooted this petition. This case does not concern
respondent Dilangalen’s election. Rather, it involves an inquiry into the validity of
COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and
Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way
or another, determines whether the votes cast in Cotabato City for representative
of the district of "Shariff Kabunsuan Province with Cotabato City" will be included
in the canvassing of ballots. However, this incidental consequence is no reason for
us not to proceed with the resolution of the novel issues raised here. The Court’s
ruling in these petitions affects not only the recently concluded elections but also
all the other succeeding elections for the office in question, as well as the power of
the ARMM Regional Assembly to create in the future additional provinces.
On the Main Issues
Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the
Constitution, which provides:
Sec. 10. No province, city, municipality, or barangay may be created, divided,
merged, abolished or its boundary substantially altered except in accordance with
the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
Thus, the creation of any of the four local government units – province, city,
municipality or barangay – must comply with three conditions. First, the creation of
a local government unit must follow the criteria fixed in the Local Government
Code. Second, such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express grant of authority in the
Constitution for Congress to delegate to regional or local legislative bodies the
power to create local government units. However, under its plenary legislative
powers, Congress can delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no conflict arises
with any provision of the Constitution. In fact, Congress has delegated to provincial
boards, and city and municipal councils, the power to create barangays within their
jurisdiction,25 subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, "only x x x an Act of
Congress" can create provinces, cities or municipalities. 261avvphi1
Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays within
the ARMM. Congress made the delegation under its plenary legislative powers
because the power to create local government units is not one of the express
legislative powers granted by the Constitution to regional legislative bodies.27 In
the present case, the question arises whether the delegation to the ARMM
Regional Assembly of the power to create provinces, cities, municipalities and
barangays conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the delegation to
regional legislative bodies of the power to create municipalities and barangays,
provided Section 10, Article X of the Constitution is followed. However, the
creation of provinces and cities is another matter. Section 5 (3), Article VI of the
Constitution provides, "Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative" in the House of
267
Representatives. Similarly, Section 3 of the Ordinance appended to the
Constitution provides, "Any province that may hereafter be created, or any city
whose population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member x x
x."
Clearly, a province cannot be created without a legislative district because it will
violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created without a legislative district.
Thus, the power to create a province, or a city with a population of 250,000 or
more, requires also the power to create a legislative district. Even the creation of a
city with a population of less than 250,000 involves the power to create a
legislative district because once the city’s population reaches 250,000, the city
automatically becomes entitled to one representative under Section 5 (3), Article VI
of the Constitution and Section 3 of the Ordinance appended to the Constitution.
Thus, the power to create a province or city inherently involves the power to create
a legislative district.
For Congress to delegate validly the power to create a province or city, it must also
validly delegate at the same time the power to create a legislative district. The
threshold issue then is, can Congress validly delegate to the ARMM Regional
Assembly the power to create legislative districts for the House of Representatives?
The answer is in the negative.
Legislative Districts are Created or Reapportioned Only by an Act of Congress
Under the present Constitution, as well as in past28 Constitutions, the power to
increase the allowable membership in the House of Representatives, and to
reapportion legislative districts, is vested exclusively in Congress. Section 5, Article
VI of the Constitution provides:
SECTION 5. (1) The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.

(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at
least one representative.
(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on
the standards provided in this section. (Emphasis supplied)
Section 5 (1), Article VI of the Constitution vests in Congress the power to increase,
through a law, the allowable membership in the House of Representatives. Section
5 (4) empowers Congress to reapportion legislative districts. The power to
reapportion legislative districts necessarily includes the power to create legislative
districts out of existing ones. Congress exercises these powers through a law that
Congress itself enacts, and not through a law that regional or local legislative
bodies enact. The allowable membership of the House of Representatives can be
increased, and new legislative districts of Congress can be created, only through a
national law passed by Congress. In Montejo v. COMELEC,29 we held that the
"power of redistricting x x x is traditionally regarded as part of the power (of
Congress) to make laws," and thus is vested exclusively in Congress.
This textual commitment to Congress of the exclusive power to create or
reapportion legislative districts is logical. Congress is a national legislature and any
increase in its allowable membership or in its incumbent membership through the
creation of legislative districts must be embodied in a national law. Only Congress
can enact such a law. It would be anomalous for regional or local legislative bodies
to create or reapportion legislative districts for a national legislature like Congress.
An inferior legislative body, created by a superior legislative body, cannot change
the membership of the superior legislative body.
The creation of the ARMM, and the grant of legislative powers to its Regional
Assembly under its organic act, did not divest Congress of its exclusive authority to
create legislative districts. This is clear from the Constitution and the ARMM
Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
268
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.
Nothing in Section 20, Article X of the Constitution authorizes autonomous
regions, expressly or impliedly, to create or reapportion legislative districts for
Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic
Act, provides, "The Regional Assembly may exercise legislative power x x x except
on the following matters: x x x (k) National elections. x x x." Since the ARMM
Regional Assembly has no legislative power to enact laws relating to national
elections, it cannot create a legislative district whose representative is elected in
national elections. Whenever Congress enacts a law creating a legislative district,
the first representative is always elected in the "next national elections" from the
effectivity of the law.30
Indeed, the office of a legislative district representative to Congress is a national
office, and its occupant, a Member of the House of Representatives, is a national
official.31 It would be incongruous for a regional legislative body like the ARMM
Regional Assembly to create a national office when its legislative powers extend
only to its regional territory. The office of a district representative is maintained by
national funds and the salary of its occupant is paid out of national funds. It is a
self-evident inherent limitation on the legislative powers of every local or regional
legislative body that it can only create local or regional offices, respectively, and it
can never create a national office.

To allow the ARMM Regional Assembly to create a national office is to allow its
legislative powers to operate outside the ARMM’s territorial jurisdiction. This
violates Section 20, Article X of the Constitution which expressly limits the coverage
of the Regional Assembly’s legislative powers "[w]ithin its territorial jurisdiction x x
x."
The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the
exclusive nature of Congress’ power to create or reapportion legislative districts by
abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of
MMA Act 201 provides that:
Except as may be provided by national law, the existing legislative district, which
includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)
However, a province cannot legally be created without a legislative district because
the Constitution mandates that "each province shall have at least one
representative." Thus, the creation of the Province of Shariff Kabunsuan without a
legislative district is unconstitutional.
Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the
Constitution, which provides:
Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative. (Emphasis
supplied)
and Section 3 of the Ordinance appended to the Constitution, which states:
Any province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member or such number of
Members as it may be entitled to on the basis of the number of its inhabitants
and according to the standards set forth in paragraph (3), Section 5 of Article VI of
the Constitution. The number of Members apportioned to the province out of
which such new province was created or where the city, whose population has so
increased, is geographically located shall be correspondingly adjusted by the
Commission on Elections but such adjustment shall not be made within one
hundred and twenty days before the election. (Emphasis supplied)
269
serve as bases for the conclusion that the Province of Shariff Kabunsuan, created
on 29 October 2006, is automatically entitled to one member in the House of
Representatives in the 14 May 2007 elections. As further support for her stance,
petitioner invokes the statement in Felwa that "when a province is created by
statute, the corresponding representative district comes into existence neither by
authority of that statute — which cannot provide otherwise — nor by
apportionment, but by operation of the Constitution, without a reapportionment."
The contention has no merit.
First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA
4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-
Apayao and providing for congressional representation in the old and new
provinces, was unconstitutional for "creati[ng] congressional districts without the
apportionment provided in the Constitution." The Court answered in the negative,
thus:
The Constitution ordains:
"The House of Representatives shall be composed of not more than one hundred
and twenty Members who shall be apportioned among the several provinces as
nearly as may be according to the number of their respective inhabitants, but each
province shall have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every enumeration, and not
otherwise. Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law for
the National Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall comprise as far as
practicable, contiguous and compact territory."
Pursuant to this Section, a representative district may come into existence: (a)
indirectly, through the creation of a province — for "each province shall have at
least one member" in the House of Representatives; or (b) by direct creation of
several representative districts within a province. The requirements concerning
the apportionment of representative districts and the territory thereof refer only to
the second method of creation of representative districts, and do not apply to
those incidental to the creation of provinces, under the first method. This is
deducible, not only from the general tenor of the provision above quoted, but,
also, from the fact that the apportionment therein alluded to refers to that which is
made by an Act of Congress. Indeed, when a province is created by statute, the
corresponding representative district, comes into existence neither by authority of

that statute — which cannot provide otherwise — nor by apportionment, but by
operation of the Constitution, without a reapportionment.
There is no constitutional limitation as to the time when, territory of, or other
conditions under which a province may be created, except, perhaps, if the
consequence thereof were to exceed the maximum of 120 representative districts
prescribed in the Constitution, which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been created or subdivided into
other provinces, with the consequent creation of additional representative
districts, without complying with the aforementioned requirements.32 (Emphasis
supplied)
Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly
created legislative districts "indirectly" through a special law enacted by
Congress creating a province and (2) the creation of the legislative districts will not
result in breaching the maximum number of legislative districts provided under the
1935 Constitution. Felwa does not apply to the present case because in Felwa the
new provinces were created by a national law enacted by Congress itself. Here,
the new province was created merely by a regional law enacted by the ARMM
Regional Assembly.
What Felwa teaches is that the creation of a legislative district by Congress does
not emanate alone from Congress’ power to reapportion legislative districts, but
also from Congress’ power to create provinces which cannot be created without a
legislative district. Thus, when a province is created, a legislative district is created
by operation of the Constitution because the Constitution provides that "each
province shall have at least one representative" in the House of Representatives.
This does not detract from the constitutional principle that the power to create
legislative districts belongs exclusively to Congress. It merely prevents any other
legislative body, except Congress, from creating provinces because for a legislative
body to create a province such legislative body must have the power to create
legislative districts. In short, only an act of Congress can trigger the creation of a
legislative district by operation of the Constitution. Thus, only Congress has the
power to create, or trigger the creation of, a legislative district.
Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to
Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone
component of the first legislative district of Maguindanao. However, Cotabato City
cannot constitute a legislative district by itself because as of the census taken in
2000, it had a population of only 163,849. To constitute Cotabato City alone as the
surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI
270
of the Constitution which requires that "[E]ach city with a population of at least
two hundred fifty thousand x x x, shall have at least one representative."
Second. Sema’s theory also undermines the composition and independence of the
House of Representatives. Under Section 19,33 Article VI of RA 9054, the ARMM
Regional Assembly can create provinces and cities within the ARMM with or
without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum
annual income of ₱20,000,000, and minimum contiguous territory of 2,000 square
kilometers or minimum population of 250,000.34The following scenarios thus
become distinct possibilities:
(1) An inferior legislative body like the ARMM Regional Assembly can
create 100 or more provinces and thus increase the membership of a
superior legislative body, the House of Representatives, beyond the
maximum limit of 250 fixed in the Constitution (unless a national law
provides otherwise);
(2) The proportional representation in the House of Representatives
based on one representative for at least every 250,000 residents will be
negated because the ARMM Regional Assembly need not comply with
the requirement in Section 461(a)(ii) of RA 7160 that every province
created must have a population of at least 250,000; and
(3) Representatives from the ARMM provinces can become the majority
in the House of Representatives through the ARMM Regional Assembly’s
continuous creation of provinces or cities within the ARMM.
The following exchange during the oral arguments of the petition in G.R. No.
177597 highlights the absurdity of Sema’s position that the ARMM Regional
Assembly can create provinces:
Justice Carpio:
So, you mean to say [a] Local Government can create legislative district[s] and pack
Congress with their own representatives [?]
Atty. Vistan II:35
Yes, Your Honor, because the Constitution allows that.

Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x
x x and, therefore, they can have thirty-five (35) new representatives in the House
of Representatives without Congress agreeing to it, is that what you are saying?
That can be done, under your theory[?]
Atty. Vistan II:
Yes, Your Honor, under the correct factual circumstances.
Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five (35) new provinces,
there may be x x x [only] one hundred thousand (100,000) [population], x x x, and
they will each have one representative x x x to Congress without any national law,
is that what you are saying?
Atty. Vistan II:
Without law passed by Congress, yes, Your Honor, that is what we are saying.
Justice Carpio:
So, they can also create one thousand (1000) new provinces, sen[d] one thousand
(1000) representatives to the House of Representatives without a national law[,]
that is legally possible, correct?
Atty. Vistan II:
Yes, Your Honor.36 (Emphasis supplied)
Neither the framers of the 1987 Constitution in adopting the provisions in Article X
on regional autonomy,37 nor Congress in enacting RA 9054, envisioned or intended
these disastrous consequences that certainly would wreck the tri-branch system of
government under our Constitution. Clearly, the power to create or reapportion
legislative districts cannot be delegated by Congress but must be exercised by
Congress itself. Even the ARMM Regional Assembly recognizes this.
271
The Constitution empowered Congress to create or reapportion legislative districts,
not the regional assemblies. Section 3 of the Ordinance to the Constitution which
states, "[A]ny province that may hereafter be created x x x shall be entitled in the
immediately following election to at least one Member," refers to a province
created by Congress itself through a national law. The reason is that the creation of
a province increases the actual membership of the House of Representatives, an
increase that only Congress can decide. Incidentally, in the present 14th Congress,
there are 21938 district representatives out of the maximum 250 seats in the House
of Representatives. Since party-list members shall constitute 20 percent of total
membership of the House, there should at least be 50 party-list seats available in
every election in case 50 party-list candidates are proclaimed winners. This leaves
only 200 seats for district representatives, much less than the 219 incumbent
district representatives. Thus, there is a need now for Congress to increase by law
the allowable membership of the House, even before Congress can create new
provinces.
It is axiomatic that organic acts of autonomous regions cannot prevail over the
Constitution. Section 20, Article X of the Constitution expressly provides that the
legislative powers of regional assemblies are limited "[w]ithin its territorial
jurisdiction and subject to the provisions of the Constitution and national laws, x
x x." The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM
Government is established "within the framework of the Constitution." This follows
Section 15, Article X of the Constitution which mandates that the ARMM "shall be
created x x x within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines."
The present case involves the creation of a local government unit that necessarily
involves also the creation of a legislative district. The Court will not pass upon the
constitutionality of the creation of municipalities and barangays that does not
comply with the criteria established in Section 461 of RA 7160, as mandated in
Section 10, Article X of the Constitution, because the creation of such municipalities
and barangays does not involve the creation of legislative districts. We leave the
resolution of this issue to an appropriate case.
In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to
the ARMM Regional Assembly the power to create provinces and cities, is void for
being contrary to Section 5 of Article VI and Section 20 of Article X of the
Constitution, as well as Section 3 of the Ordinance appended to the Constitution.
Only Congress can create provinces and cities because the creation of provinces
and cities necessarily includes the creation of legislative districts, a power only
Congress can exercise under Section 5, Article VI of the Constitution and Section 3

of the Ordinance appended to the Constitution. The ARMM Regional Assembly
cannot create a province without a legislative district because the Constitution
mandates that every province shall have a legislative district. Moreover, the ARMM
Regional Assembly cannot enact a law creating a national office like the office of a
district representative of Congress because the legislative powers of the ARMM
Regional Assembly operate only within its territorial jurisdiction as provided in
Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted
by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is
void.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No. 7902, preserving the
geographic and legislative district of the First District of Maguindanao with
Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section
20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended
to the Constitution.
WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054
UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the
Autonomous Region in Muslim Mindanao the power to create provinces and cities.
Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the
Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution
No. 7902 is VALID.
Let a copy of this ruling be served on the President of the Senate and the Speaker
of the House of Representatives.
SO ORDERED.
558 SCRA 700 – Political Law – Municipal Corporation – Creation of LGUs by
Autonomous Regions (ARMM) – Population Requirement
The Province of Maguindanao is part of ARMM. Cotabato City is part of the
province of Maguindanao but it is not part of ARMM because Cotabato City voted
against its inclusion in a plebiscite held in 1989. Maguindanao has two legislative
districts. The 1st legislative district comprises of Cotabato City and 8 other
municipalities.
272
A law (RA 9054) was passed amending ARMM’s Organic Act and vesting it with
power to create provinces, municipalities, cities and barangays. Pursuant to this
law, the ARMM Regional Assembly created Shariff Kabunsuan (Muslim Mindanao
Autonomy Act 201) which comprised of the municipalities of the 1st district of
Maguindanao with the exception of Cotabato City.
For the purposes of the 2007 elections, COMELEC initially stated that the 1st
district is now only made of Cotabato City (because of MMA 201). But it later
amended this stating that status quo should be retained; however, just for the
purposes of the elections, the first district should be called Shariff Kabunsuan with
Cotabato City – this is also while awaiting a decisive declaration from Congress as
to Cotabato’s status as a legislative district (or part of any).
Bai Sandra Sema was a congressional candidate for the legislative district of S.
Kabunsuan with Cotabato (1st district). Later, Sema was contending that Cotabato
City should be a separate legislative district and that votes therefrom should be
excluded in the voting (probably because her rival Dilangalen was from there and D
was winning – in fact he won). She contended that under the Constitution, upon
creation of a province (S. Kabunsuan), that province automatically gains legislative
representation and since S. Kabunsuan excludes Cotabato City – so in effect
Cotabato is being deprived of a representative in the HOR.
COMELEC maintained that the legislative district is still there and that regardless of
S. Kabunsuan being created, the legislative district is not affected and so is its
representation.
ISSUE: Whether or not RA 9054 is unconstitutional. Whether or not ARMM can
create validly LGUs.
HELD:
RA 9054 is unconstitutional. The creation of local government units is governed by
Section 10, Article X of the Constitution, which provides:
Sec. 10. No province, city, municipality, or barangay may be created, divided,
merged, abolished or its boundary substantially altered except in accordance with
the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.

Thus, the creation of any of the four local government units province, city,
municipality or barangay must comply with three conditions. First, the creation of a
local government unit must follow the criteria fixed in the Local Government Code.
Second, such creation must not conflict with any provision of the Constitution.
Third, there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express grant of authority in the
Constitution for Congress to delegate to regional or local legislative bodies the
power to create local government units. However, under its plenary legislative
powers, Congress can delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no conflict arises
with any provision of the Constitution. In fact, Congress has delegated to provincial
boards, and city and municipal councils, the power to create barangays within their
jurisdiction, subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. Hence, ARMM cannot validly create Shariff Kabunsuan province.
Note that in order to create a city there must be at least a population of at least
250k, and that a province, once created, should have at least one representative in
the HOR. Note further that in order to have a legislative district, there must at least
be 250k (population) in said district. Cotabato City did not meet the population
requirement so Sema’s contention is untenable. On the other hand, ARMM cannot
validly create the province of S. Kabunsuan without first creating a legislative
district. But this can never be legally possible because the creation of legislative
districts is vested solely in Congress. At most, what ARMM can create are
barangays not cities and provinces.
Facts: On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly,
exercising its power to create provinces under Section 19, Article VI of RA 9054,
enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the
Province of Shariff Kabunsuan composed of the eight municipalities in the first
district of Maguindanao. MMA Act 201 provides:
Later, three new municipalities were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11.
Thus, what was left of Maguindanao were the municipalities constituting its second
legislative district. Cotabato City, although part of Maguindanao’s first legislative
district, is not part of the Province of Maguindanao.
273
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed
Resolution No. 3999 requesting the COMELEC to “clarify the status of Cotabato City
in view of the conversion of the First District of Maguindanao into a regular
province” under MMA Act 201.
Resolution No. 07-0407, which adopted the recommendation of the COMELEC’s
Law Department under a Memorandum dated 27 February 2007, provides in
pertinent parts:
Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to
adopt the recommendation of the Law Department that pending the enactment of
the appropriate law by Congress, to maintain the status quo with Cotabato City as
part of Shariff Kabunsuan in the First Legislative District of Maguindanao.
On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these
petitions, amending Resolution No. 07-0407 by renaming the legislative district in
question as “Shariff Kabunsuan Province with Cotabato City (formerly First District
of Maguindanao with Cotabato City).”
Issue: The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test
the constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as representative of Shariff
Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.
(B) On the merits –
(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays, is
constitutional; and
(2) if in the affirmative, whether a province created by the ARMM Regional
Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is

entitled to one representative in the House of Representatives without need of a
national law creating a legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902
is valid for maintaining the status quo in the first legislative district of Maguindanao
(as “Shariff Kabunsuan Province with Cotabato City [formerly First District of
Maguindanao with Cotabato City]”), despite the creation of the Province of Shariff
Kabunsuan out of such district (excluding Cotabato City).
Held:
WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054
UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the
Autonomous Region in Muslim Mindanao the power to create provinces and cities.
Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the
Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution
No. 7902 is VALID.
Ratio: The creation of any of the four local government units – province, city,
municipality or barangay – must comply with three conditions. First, the creation of
a local government unit must follow the criteria fixed in the Local Government
Code. Second, such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express grant of authority in the
Constitution for Congress to delegate to regional or local legislative bodies the
power to create local government units. However, under its plenary legislative
powers, Congress can delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no conflict arises
with any provision of the Constitution. In fact, Congress has delegated to provincial
boards, and city and municipal councils, the power to create barangays within their
jurisdiction, subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, “only x x x an Act of
Congress” can create provinces, cities or municipalities.
However, the creation of provinces and cities is another matter. Section 5 (3),
Article VI of the Constitution provides, “Each city with a population of at least two
274
hundred fifty thousand, or each province, shall have at least one representative” in
the House of Representatives. Similarly, Section 3 of the Ordinance appended to
the Constitution provides, “Any province that may hereafter be created, or any city
whose population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member x x
x.”
Clearly, a province cannot be created without a legislative district because it will
violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created without a legislative district.
This textual commitment to Congress of the exclusive power to create or
reapportion legislative districts is logical. Congress is a national legislature and any
increase in its allowable membership or in its incumbent membership through the
creation of legislative districts must be embodied in a national law. Only Congress
can enact such a law. It would be anomalous for regional or local legislative bodies
to create or reapportion legislative districts for a national legislature like Congress.
An inferior legislative body, created by a superior legislative body, cannot change
the membership of the superior legislative body.
In view of certiorari and mandamus
The purpose of the writ of Certiorari is to correct grave abuse of discretion by “any
tribunal, board, or officer exercising judicial or quasi-judicial functions.” On the
other hand, the writ of Mandamus will issue to compel a tribunal, corporation,
board, officer, or person to perform an act “which the law specifically enjoins as a
duty.”
In view of mootness
There is also no merit in the claim that respondent Dilangalen’s proclamation as
winner in the 14 May 2007 elections for representative of “Shariff Kabunsuan
Province with Cotabato City” mooted this petition. This case does not concern
respondent Dilangalen’s election. Rather, it involves an inquiry into the validity of
COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and
Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one
way or another, determines whether the votes cast in Cotabato City for
 275

representative of the district of “Shariff Kabunsuan Province with Cotabato City”
will be included in the canvassing of ballots. However, this incidental consequence
is no reason for us not to proceed with the resolution of the novel issues raised
here. The Court’s ruling in these petitions affects not only the recently concluded
elections but also all the other succeeding elections for the office in question, as
well as the power of the ARMM Regional Assembly to create in the future
additional provinces.
In view of the Felwa case
As further support for her stance, petitioner invokes the statement in Felwa that
“when a province is created by statute, the corresponding representative district
comes into existence neither by authority of that statute — which cannot provide
otherwise — nor by apportionment, but by operation of the Constitution, without a
reapportionment.”
First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA
4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-
Apayao and providing for congressional representation in the old and new
provinces, was unconstitutional for “creating congressional districts without the
apportionment provided in the Constitution.”
Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly
created legislative districts “indirectly” through a special law enacted by Congress
creating a province and (2) the creation of the legislative districts will not result in
breaching the maximum number of legislative districts provided under the 1935
Constitution. Felwa does not apply to the present case because in Felwa the new
provinces were created by a national law enacted by Congress itself. Here, the new
province was created merely by a regional law enacted by the ARMM Regional
Assembly.
Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to
Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone
component of the first legislative district of Maguindanao. However, Cotabato City
cannot constitute a legislative district by itself because as of the census taken in
2000, it had a population of only 163,849.
Second. Sema’s theory also undermines the composition and independence of the
House of Representatives. Under Section 19, Article VI of RA 9054, the ARMM
Regional Assembly can create provinces and cities within the ARMM with or
without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum
annual income of P20,000,000, and minimum contiguous territory of 2,000 square
kilometers or minimum population of 250,000. The following scenarios thus
become distinct possibilities:
It is axiomatic that organic acts of autonomous regions cannot prevail over the
Constitution. Section 20, Article X of the Constitution expressly provides that the
legislative powers of regional assemblies are limited “[w]ithin its territorial
jurisdiction and subject to the provisions of the Constitution and national laws, x x
x.” The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM
Government is established “within the framework of the Constitution.” This
follows Section 15, Article X of the Constitution which mandates that the ARMM
“shall be created x x x within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.”

What Felwa teaches is that the creation of a legislative district by Congress does
not emanate alone from Congress’ power to reapportion legislative districts, but
also from Congress’ power to create provinces which cannot be created without a
legislative district. Thus, when a province is created, a legislative district is created
by operation of the Constitution because the Constitution provides that “each
province shall have at least one representative” in the House of Representatives.
 276

EN BANC employed by NPC after June 26, 2001, the date of the EPIRA's effectivity, for any
reason other than voluntary resignation.3
November 21, 2017
The Main Decision
G.R. No. 156208
In Our Decision4 dated September 26, 2006, we ruled that the abovementioned
NPC DRIVERS AND MECHANICS ASSOCIATION (NPC DAMA), Petitioners resolutions were void and without effect. These were not passed by a majority of
vs. NPB's members, as only three out of nine members voted. The other four
THE NATIONAL POWER CORPORATION (NPC), Respondents signatories to the resolutions were not members of the Board. They were merely
representatives of those actually named under the EPIRA to sit as members of the
NPB. Thus, their votes did not count.
RESOLUTION

Clarifiying the Main Decision

LEONARDO-DE CASTRO, J.:

Subsequently, We clarified the effect of Our Decision in our Resolution dated

For resolution are the following motions filed subsequent to the entry in the Book
September 17, 2008 to wit:
of Entries of the Judgment of the Court's decision in the above-entitled case: (a) the
National Power Corporation (NPC)'s Manifestation and Motion dated August 22,
2014; (b) Power Sector Assets and Liabilities Management Corporation (PSALM)' s 1. The Court's Decision does not preclude the NPB from passing another resolution,
Omnibus Motion dated August 22, 2015; (c) the petitioners' Motion to Expunge in accord with law and jurisprudence, approving a new separation program from its
dated September 1, 2014; and (d) Meralco's Special Appearance with Urgent employees.
Motion for Clarification dated September 4, 2014.
2. The termination of the petitioners' employment on January 31, 2003 was illegal.
Antecedent Facts
3. Due to the illegal dismissal, as a general rule, the petitioners are entitled to
The Electric Power Industry Reform Act (EPIRA)1 was enacted to ordain reforms in reinstatement. However, reinstatement has become impossible because NPC was
the electric power industry, including the privatization of the assets and liabilities still able to proceed with its reorganization prior to the promulgation of the
of the NPC. Pursuant to this objective, the said law created the National Power Decision dated September 26, 2006.
Board (NPB) consisting of nine (9) heads of agencies as members, to wit: (a)
Secretary of Finance, (b) Secretary of Energy, (c) Secretary of Budget and 4. Thus, the petitioners are entitled to the following:
Management, (d) Secretary of Agriculture, (e) Director-General of the National
Economic and Development Authority, (f) Secretary of Environment and Natural a. Separation pay in lieu of reinstatement, based on a validly approved separation
Resources, (g) Secretary of the Interior and Local Government, (h) Secretary of the program of the NPC; and
Department of Trade and Industry, and (i) President of the NPC.2
b. Back wages together with wage adjustments and all other benefits which they
In line with NPC's privatization, the EPIRA also called for the NPC's restructuring. In would have received had it not been for the illegal dismissal, computed from
this regard, the NPB passed NPB Resolution Nos. 2002- 124 and 2002-125 directing January 31, 2003 until actual reinstatement or payment of separation pay.
the termination from service of all NPC employees effective January 31, 2003. The
restructuring plan covered even "Early-leavers" or those who: (a) did not intend to
be rehired by NPC based on the new organizational structure, or (b) were no longer

5. However, any amount of separation benefits already received by the petitioners
under NPB Resolution Nos. 2002-124 and 2002-125 shall be deducted from their
total entitlement.
We also approved a 10% charging lien in favor of the petitioners' counsels, Attys.
Aldon and Orocio, in accordance with the Labor Code which limits attorney's fees in
illegal dismissal cases (in the private sector) to 10% of the recovered amount.
Finally, We deferred the computation of the actual amounts due the petitioners
and the enforcement of payment thereof by execution to the proper forum, as this
Court is not a trier of facts. We held that this Court is not equipped to receive
evidence and determine the truth of the factual allegations of the parties on this
matter.
NPB Ratifies NPB Resolution Nos. 2002-124 and 2002-125
In the meantime, on September 14, 2007, the NPB issued Resolution No. 2007-55,
which adopted, confirmed, and approved the principles and guidelines enunciated
in NPB Resolution Nos. 2002-124 and 2002-125.
Entry of Judgment
Our Decision dated September 26, 2006 became final and executory on October
10, 2008. The entry of judgmentthereof was made on October 27, 2008. Thus, in
Our Resolution dated December 10, 2008, we granted the petitioners' motion for
execution. We directed the Chairman and Members of the NPB and the President
of NPC (NPB/NPC) to prepare a verified list of the names of all NPC employees
terminated/separated as a result of NPB Resolution Nos. 2002-124 and 2002-125,
and the amounts due to each of them, including 12% legal interest. We also
directed the Office of the Clerk of Court and ex-officio Sheriff of the Regional Trial
Court (RTC) of Quezon City to: a) issue a writ of execution based on the list
submitted by the NPC, and b) undertake all necessary actions to execute the herein
decision and resolution.
The petitioners sought to cite the NPB/NPC for contempt for its alleged failure to
comply with the Court's directive. They also insisted for the garnishment and/or
levy of NPC's assets, including those of PSALM, for the satisfaction of the
judgment.
277
The NPC countered that there were actually only 16 NPC personnel terminated on
January 31, 2003. Also, the issuance of NPB Resolution No. 2007-55 cured the
infirm NPB Resolution Nos. 2002-124 and 2002-125. Thus, the termination on
January 31, 2003 was valid and legal.
Extent of Illegal Dismissal and PSALM's Liability
In our Resolution dated December 2, 2009, We held that Our previous rulings
contemplated the illegal dismissal of all NPC employees pursuant to NPB
Resolution Nos. 2002-124 and 2002-125, not just 16. Based on NPC Circular No.
2003-09, the terminations were implemented in four (4) tranches, viz.: (a) Top
executives - effective January 31, 2003; (b) Early-leavers - effective January 15,
2003; (c) Those no longer employed in the NPC after June 26, 2001 - effective on
the date of actual separation; and (d) All other personnel - effective February 28,
2003.
We ruled further that the issuance of NPB Resolution No. 2007-55 on September
14, 2007 only means that the services of all NPC employees have been legally
terminated on this date. Thus, the petitioners' entitlement (i.e., separation pay in
lieu of reinstatement plus back wages less benefits already received) shall be
reckoned from the above-mentioned dates (instead of just January 31, 2003) up to
September 14, 2007.
Lastly, We held that PSALM's assets may be subject of the execution of this
case.1awp++i1 We explained that under the EPIRA, PSALM shall assume all of NPC's
existing generation assets, liabilities, IPP contracts, real estate, and other
disposable assets. It would be unfair and unjust if PSALM gets nearly all of NPC's
assets but will not pay for liabilities incurred by NPC during the privatization stage.
Further, there was a transfer of interest over these assets by operation of law.
These properties may be used to satisfy the judgment.5
Our Jurisdiction, Legal Interest, and NPB Resolution No. 2007-55's Non-
Retroactivity
In our Resolution dated June 30, 2014, we emphasized that by virtue of Section 78
of the EPIRA, We have jurisdiction to rule on the issue of the illegal termination of
NPC employees. Also, since Our Decision dated September 26, 2006 and Resolution
dated September 17, 2008 have already become final and executory, NPC is barred
by the principles of estoppel and finality of judgments from raising arguments
aimed at modifying Our final rulings.

Further, we held that Our Resolution dated September 17, 2008 did not grant
additional reliefs. It merely clarified the Decision dated September 26, 2006.
On the other hand, we also ruled that Our Resolution dated December 10, 2008 did
not exceed the terms of the Resolution dated September 17, 2008 (inasmuch as it
also awarded interest). Legal interest on the judgment debt shall be computed as
follows:
1. 12% from October 10, 2008 (finality of the Decision dated September
26, 2006) until June 30, 2013; and
2. 6% from July 1, 2013 (effectivity of Central Bank Circular No. 799)
onwards.
As for NPB Resolution No. 2007-55, We pointed out that it did not affect our final
rulings as the said resolution shall be applied prospectively (September 14, 2007
onwards).
We continued to explain PSALM's liability in this case. Pursuant to Sections 47, 49,
50, and 55 of the EPIRA, PSALM assumed NPC's liabilities existing at the time of
the EPIRA's effectivity, including the separation benefits due to the petitioners.
Finally, We found the NPC and Office of the Solicitor General (OSG) guilty
of indirect contempt due to their noncompliance with our final orders. The parties
were ordered to pay a fine of ₱30,000.00 each.
Implementation and Execution of
the Court's Main Decision and
Resolutions
Pursuant to Our Resolution dated June 30, 2014, the RTC Clerk of Court and Ex-
Officio Sheriff issued a Demand for Immediate Payment dated July 28, 2014 and
served the same upon the NPC and PSALM. The demand amounted to
₱62,051,646,567.13 broken down as follows:
A few days later, in a letter dated July 31, 2014, the R TC Clerk of Court and Ex-
Officio Sheriff asked the Court to clarify the effects of our Resolution dated June 30,
2014, specifically whether the judgment may already be executed. In response,
some of the petitioners, as represented by Attys. Aldon and Orocio, also wrote a
letter dated August 5, 2014 to request the Court to immediately act on this matter.
278
Before the Court could act on the above-mentioned correspondences, the RTC
Clerk of Court and ex-officio Sheriff issued Notices of Garnishment addressed to the
Manila Electric Company (Meralco), and National Transmission Commission
(Transco)7 with respect to all credits in or under their possession or control owing
or payable to NPC and/or PSALM, including but not limited to bank deposits and
financial interests, goods, effects, stocks, interest in stock and shares, and any
other personal properties. Another Notice of Garnishment was also served upon
Land Bank of the Philippines (Landbank) in relation to NPC and PSALM's bank
accounts.8
In separate letters, PSALM, through its president and chief executive officer
Emmanuel R. Ledesma, Jr., advised Meralco and Transco to "exercise restraint and
refrain from improvidently releasing funds" owing to PSALM to satisfy the Notices
of Garnishment served upon them.
NPC Employees List Requirement
and Suspension of Execution
In Our Resolution dated September 9, 2014, the Court directed the parties to
submit their separate lists of NPC employees as of January 31, 2002, showing the
following data:
i. The full name;
ii. Date of hire;
iii. Last date of uninterrupted service after date of hire;
iv. Position, and salary as of last date of service; and
v. If termination or separation pay has been received at any time from
NPC, the amount of termination or separation pay received and date of
receipt.
Further, We directed the RTC Clerk of Court and Ex-Officio Sheriff: (a) to defer the
implementation of the Main Decision and the Resolutions dated September 17,
2008, December 2, 2009, and June 30, 2014 while We consider the submissions
now before Us and until further notice; and (b) lift the Notice of Garnishment dated
August 14, 2014.

Subsequently, in Our Resolution dated October 20, 2014, we modified the terms of
Our Resolution dated September 9, 2014 and required a more detailed list as
follows:
a. Employee's full name;
b. Date of hire;
c. Position as of date of hire;
d. Date of actual termination under NPB Resolution Nos. 2002-124 and 2002-125;
e. Position as of date of actual termination under NPB Resolution Nos. 2002-124
and 2002-125;
f. Salary as of last date of actual termination;
g. Separation pay that the employee is entitled to under the approved separation
pay program;
h. Date of receipt of separation pay;
1. Amount of separation pay received;
j. Wage adjustments and other benefits that the employee is entitled to from the
date of actual termination until September 14, 2007;
k. Wage adjustments and other benefits that the employee has received from the
date of actual termination until September 14, 2007;
l. Date of re-hire by the NPC, the PSALM, or the TRANSCO, if any;
m. Position as of date of re-hire by the NPC, the PSALM, or the TRANSCO, if any;
n. Salary as of date of re-hire by the NPC, the PSALM, or the TRANSCO, if any;
o. Subsequent position/s in the NPC, the PSALM, or the TRANSCO as a result of
personnel actions after the date of re-hire;
279
p. Date of release of appointment papers in the subsequent position/s;
q. Salary in the subsequent position/s;
r. Date of actual termination in the NPC, the PSALM, or the TRANSCO, if any;
s. Separation pay that the employee is entitled to under the approved separation
pay program;
t. Amount of separation pay received;
u. Date of receipt of separation pay.9
The NPC and PSALM submitted their compliance to our Resolution dated October
20, 2014.
The NPC submitted a list of 9,272 employees, including details required by our
Resolution dated October 20, 2014, through their Compliance Ad Cautelam dated
March 16, 2015. However, it made the following reservations:
1. Its submission should not prejudice the reliefs prayed for in NPC's
Manifestation and Motion dated August 22, 2014.
2. The figures in the submission are necessarily indeterminate because
they are subject to the final outcome of disallowance proceedings under
the Commission on Audit and a pending case before the RTC (Case No. R-
QZN-15-01290 CV) based on their lack of appropriation cover.
On the other hand, PSALM' s submission was partially based on the information it
received from NPC, the custodian of personnel records, which considered 47
former NPC employees. PSALM points out that it is unable to provide complete
information.
It argues that assuming that it is liable, the affected NPC employees have already
been paid separation benefits pursuant to Rule 33 of the EPIRA Implementing
Rules.
Motions Pending Resolution

The motions that remain pending before Us (after the Resolution dated June 30,
2014) are as follows: (a) the NPC's Manifestation and Motion dated August 22,
2014; (b) PSALM's Omnibus Motion dated August 22, 2015; (c) the petitioners'
Motion to Expunge dated September 1, 2014; and (d) Meralco's Special
Appearance with Urgent Motion for Clarification dated September 4, 2014.
The NPC's Manifestation and Motion dated August 22, 2014
The NPC argues as follows:
1. The subject matter of the case has a huge financial impact, which must be
decided en banc.
PSALM echoes this view.10 It further claims that two divisions of the Court have
given conflicting decisions-while one has ruled that PSALM is an indispensable
party, the other considered them as a necessary party. Thus, in PSALM's view, to
remedy the seeming conflict between the two rulings, the present case must be
referred to the Court en banc.
In Our Resolution dated September 9, 2014, we deferred the resolution of this
matter pending full consideration of other remaining motions submitted by the
parties.
2. The Supreme Court has no jurisdiction over illegal dismissal cases of
NPC employees. Jurisdiction is vested with the Civil Service Commission
(CSC).
3. Department secretaries may vote through representatives.
4. In the absence of an actual computation of the amounts due to the
petitioners, the RTC Clerk of Court and Ex-Officio sheriff of Quezon City
cannot garnish NPC's properties. The Court's delegation of authority must
first be raffled to an RTC judge for proper determination pursuant to the
Court's Resolution dated June 30, 2014.
PSALM's Omnibus Motion dated August 22, 201511
PSALM maintains that it should be absolved from any liability in this case due to the
following reasons:
280
1. PSALM shall only be liable for obligations/liabilities that were exclusively listed
under the EPIRA, to wit: (1) NPC liabilities transferred to PSALM, (2) transfers from
the national government, (3) new loans, and (4) NPC stranded contract
costs.12 Thus, despite the privatization of NPC's assets, NPC remained as separate
and distinct from PSALM. It is capable of fulfilling its own obligations that were not
assumed by PSALM.
2. The obligation to pay separation benefits was not among the liabilities assumed
by PSALM because it arose only after the EPIRA took effect.13
a. Under Section 49 of the EPIRA, PSALM shall be liable only for NPC's selected
outstanding obligations. The obligation to pay separation benefits in the present
case was not an outstanding obligation assumed by PSALM because, at the time of
the EPIRA's passage, the obligation did not yet exist nor did it arise from any loan,
bond issuance, security and other instrument indebtedness. 14
b. The obligation to pay the separation benefits in the present case only arose after
the EPIRA took effect. Only NPC liabilities existing during the effectivity of the
EPIRA were transferred to PSALM. Such transfer could not have included even NPC
liabilities incurred after the EPIRA took effect.
3. NPC remains to be solely liable for the payment of separation benefits in this
case.
a. Separation benefits as a result of the privatization of NPC are governed by
Section 63 of the EPIRA and Rule 33 of its Implementing Rules.
b. Under Section 4, Rule 33 of the Implementing Rules, funds necessary to cover
the payment of separation pay shall be provided by either the GSIS or from the
corporate funds of the NEA or the NPC, as the case may be. The Buyer or
Concessionaire or the successor company shall not be liable for the payment
thereof.
c. There is no basis to hold PSALM liable. The IRR clearly mandates that the
payment of separation pay in favor of displaced NPC employees shall be out of
NPC's own corporate funds.
4. If PSALM is at all liable, its liability is limited to the separation pay of NPC
employees terminated pursuant to a valid separation plan. PSALM cannot be held
liable for separation pay arising from a separation/restructuring plan that was

tainted with irregularities and bad faith. If the law had intended PSALM to assume
even the obligation to pay separation pay, the same would have been clear and
categorical.15
However, in PSALM's Supplement to the Compliance dated October 27, 2014,16 it
argues that the separation program was effected through valid board actions. The
laws applicable to government corporations like NPC recognize the validity of
designating alternates to sit as members of the governing boards.
Further, based on the Congressional deliberations leading to the EPIRA's
enactment, the legislature intended to limit NPC liabilities to be transferred and
assumed by PSALM only to NPC debts arising from direct contractual obligations
with banking and multilateral financial institutions.17
5. Its right to due process was violated when it was declared as a mere necessary
party to the case.
6. In keeping with PSALM's right to due process, the Notices of Garnishment issued
to it by the Regional Trial Court, Quezon City, Clerk of Court should be quashed for
being fatally defective.
7. Prior approval by the Commission on Audit (COA) must first be obtained before
any money judgment can be enforced against PSALM.
On the other hand, the petitioners counter that while government funds are
generally not subject to execution, this rule admits of exceptions.18 Relying
on National Housing Authority v. Heirs of Isidro Guivelondo,19 they argue that funds
belonging to a public corporation or a government-owned or controlled
corporation like PSALM, which is clothed with its own personality, separate, and
distinct from that of the government are not exempt .from garnishment.20
Petitioners' Motion to Expunge dated September 1, 2014
The petitioners argue that the NPC's Manifestation and Motion dated August 22,
2014 and PSALM's Omnibus Motion dated August 22, 2015 violate the prohibition
against the filing of a second motion for reconsideration. In their view, the
arguments raised in these motions are mere rehashes of issues already resolved
and disposed of by the Court. Thus, the petitioners request that these motions be
denied and excluded from the records of the case altogether.
281
Meralco's Special Appearance with Urgent Motion for Clarification dated
September 4, 2014
Meralco filed its Special Appearance before the Court in view of: (a) the Notice of
Garnishment dated August 14, 2014 served by the RTC Clerk of Court and Ex-
Officio Sheriff garnishing all credits owing to PSALM but in and under Meralco's
possession and control; and (b) PSALM's letter of even date cautioning Meralco to
exercise restraint and refrain from releasing funds due to PSALM but still in its
(Meralco) possession.
Meralco manifests to the Court the following:
1. In response to the Notice of Garnishment, it filed a Compliance and
Manifestation dated August 19, 2014. Meralco informed the RTC Clerk of Court
and Ex-Officio Sheriff that it is ready and willing to comply with the RTC's directives
and processes. However, there are serious repercussions that may arise due to the
garnishment of PSALM's credits (i.e.,suspension and/or nonpayment/-fulfillment of
reciprocal obligations between PSALM and Meralco, possible breach of contract on
Meralco's part, etc.). Thus, the parties must first clarify these matters with and seek
guidance from the Court.
2. Meralco also asserts that its regular remittances to PSALM may be any one of
three types, to wit: (a) universal charges for: 1) NPC's stranded contract costs, 2)
missionary electrification, and 3) environmental charges; (b) line rental costs for
energy purchases of Sunpower Philippines Manufacturing Limited (Sunpower); and
(c) deferred accounting adjustments - generation rate adjustment
mechanism (DAA-GRAM).
It discusses each type of remittance as follows:
a. Universal charges are collected by Meralco and remitted to PSALM by virtue of
several Energy Regulatory Commission (ERC) rulings.21 In accordance with the
EPIRA, upon remittance, PSALM will then place the amounts received in a Special
Trust Fund (STF), which shall be disbursed for purposes specified in Section 34 of
the EPIRA22 and in favor of identified beneficiaries. Meralco claims that the
judgment obligation in the present case has not been included in the previous
filings of the NPC/PSALM for the recovery of any component of universal charge.
b. Line rental cost is an amount billed by the Philippine Electricity Market
Corporation (PMC) to buyers of electricity covered by bilateral contracts to account

for the cost of energy lost in the process of delivering contracted energy volumes
from a generator's plant to the buyers. Sunpower is one of the said buyers of
electricity. There is a special arrangement with regard to the line rental cost
attributable to Sunpower where, instead of billing Sunpower directly, PMC bills
PSALM, which in turn bills Meralco. Meralco then has the duty to collect the
amount from Sunpower. Upon collection, Meralco shall remit the amount to
PSALM, which will ultimately be remitted to PMC. Thus, while the amounts of line
rental cost will be initially remitted to PSALM, the latter does not own the same nor
will it accrue in its favor.
c. DAA-GRAM is a means approved by the ERC allowing the NPC to recover the
difference between the allowable fuel and purchased power costs and the amounts
recovered under the basic generation charge for the period from January 2007 to
April 2010. Meralco shall collect the DAA-GRAM from the end users and remit the
same in favor of the NPC. Stated differently, it is a pass-through charge.
Meralco points out that since the Notice of Garnishment covers all credits owing to
PSALMINPC, it is thus being required to withhold all the above-mentioned
remittances. However, the law sets aside these collections for specific purposes.
There is also an established process before Meralco can collect these amounts
from its customers.23
Finally, Meralco avers that it is not in a position to determine the validity of the
Notice of Garnishment or whether the amounts in its possession and owing to
PSALM are proper subjects of the garnishment. It is not even a party to the present
case. Thus, Meralco has come before the Court to clarify: (a) whether the amounts
in its possession pertaining to universal charges, line rental cost, and DAA-GRAM
may be garnished in satisfaction of the judgment obligation in the present case,
and (b) whether separation benefits may be recovered as part of the universal
charge.
In its comment to Meralco's Special Appearance,24 PSALM maintains that
separation benefits are not recoverable from collections of universal charges.
Section 34 of the EPIRA clearly enumerates the purposes by which the proceeds
from these charges may be disbursed. The judgment obligation in the present case
not being one of these purposes, the garnishment of the universal charges in the
custody of the Meralco and payable to PSALM violates the EPIRA.
PSALM adds that amounts pertaining to universal charges, line rental cost, and
DAA-GRAM are not NPC assets. These are exactions authorized by law for a specific
purpose and, thus, cannot be garnished.
282
On the other hand, the petitioners aver that the amounts pertaining to the
universal charge may be garnished.
Issues
Based on the parties' submissions, the issues now before Us are as follows:
1. May PSALM be held directly liable for the judgment debt?
2. Can the RTC Clerk of Court and Ex-Officio Sheriff immediately and
directly proceed with the garnishment or levy of NPC assets?
3. What is the formula to compute the petitioners' entitlement?
The Court's Ruling
At the onset, We emphasize that most of the matters raised by respondents NPC
and PSALM in their respective submissions have already been ruled upon by the
Court and have since attained finality, i.e., (a) NPB Resolution Nos. 2002-124 and
2002-125 are void and without legal effect; (b) As a result, the petitioners were
illegally dismissed; (c) As illegally dismissed employees, they are entitled to
separation pay in lieu of reinstatement, back wages, and other wage adjustments,
but after deduction of the separation pay they already received under the
restructuring plan; and (d) Counsels for the petitioners are entitled to a 10%
charging lien.
Thus, this resolution shall address only the new matters raised in the above-
mentioned pending motions.
First, We affirm Our Resolution dated June 30, 2014 that PSALM is directly liable for
the judgment obligation. While the general rule is that the NPC, as the employer
guilty of illegal dismissal, shall be liable for the petitioners' entitlement, PSALM
assumed this obligation. PSALM's assumption is clear based on the following
reasons: (a) the subject liability was already existing at the time of the EPIRA's
effectivity and was transferred from NPC to PSALM by virtue of Section 49 of the
law; (b) the subject liability is a "Transferred Obligation" as defined under the Deed
of Transfer; and (c) under the EPIRA, PSALM is duty-bound to settle this liability.

Second, while PSALM is directly liable for the payment of the petitioners'
entitlement, We direct the petitioners to follow the proper procedure to enforce a
judgment award against the government. We have consistently ruled that the back
payment of any compensation to public officers and employees cannot be done
through a writ of execution.25 The COA has exclusive jurisdiction to settle "all debts
and claims of any sort due from or owing to the Government or any of its
subdivisions, agencies, and instrumentalities."26 The proper procedure to enforce a
judgment award against the government is to file a separate action before the COA
for its satisfaction.27
Third, as a matter of prudence, We also propose guidelines that shall aid the COA in
determining, re-computing, and validating the amount due to the petitioners.
The petitioners' entitlement shall be computed based on the following general
formula: Separation pay in lieu of reinstatement plus back wages plus other wage
adjustments minus separation pay already received under the plan.28
On the other hand, the attorney's charging lien shall be 10% of the petitioners'
entitlement, after deducting the separation pay already received by the petitioners
under the restructuring plan.
Lastly, aside from the petitioners' entitlement, illegally dismissed employees are
entitled to interest at the legal rate.29The payment of legal interest is a "natural
consequence of a final judgment."30 Interest on the judgment award shall be
computed as follows: (1) 12% per annum from October 8, 2008,31 until June 30,
2013; and (2) 6% per annum from July 1, 2013 onwards.
Issues Already Resolved with Finality
Before proceeding to the above-mentioned issues, We observe that the NPC and
PSALM have, up to this point, repeatedly and continuously defended the validity of
NPB Resolution Nos. 2002-124 and 2002-125, as well as the resulting separation of
NPC employees.
To recall, Our Main Decision dated September 26, 2006 and Resolution dated
September 17, 2008 have already been entered in the Book of Entries of
Judgment.32 Thus, as we ruled in Our Resolution dated June 30, 2014, it is clear that
these rulings have become final and executory.
For emphasis, the matters resolved by the Court in these rulings are as follows:
283
ILLEGAL DISMISSAL
1. NPB Resolution Nos. 2002-124 and 2002-125 are void and without legal effect
(Main Decision).
2. The logical and necessary consequences (Resolution dated September 17, 2008)
of these invalid resolutions are as follows:
a. The terminations pursuant to these resolutions were illegal dismissals.
i. This contemplates the illegal dismissal of all NPC employees, not just 16
employees, who were dismissed on different dates pursuant to the NPC
restructuring (Resolutions dated December 2, 2009 and June 30, 2014).
b. Reinstatement has become impossible.
c. Those illegally dismissed are entitled to: separation pay in lieu of
reinstatement plus back wages lessbenefits already received under the approved
separation program (Petitioners' entitlement).
3. The issuance of NPB Resolution No. 2007-55 on September 14, 2007 only means
that the services of all NPC employees have been legally terminated on this date
(Resolution dated December 2, 2009). It shall be applied prospectively (Resolution
dated June 30, 2014).
CHARGING LIEN
4. Attys. Aldon and Orocio are entitled to a 10% charging lien (Resolution dated
September 17, 2008).
The basic rule is that a judgment that has lapsed into finality is immutable and
unalterable.33 Thus, the matters that have already been resolved in the Main
Decision and Resolution dated September 17, 2008 should no longer be disturbed.
The respondents' persistence to overturn an unfavorable but final judgment is
exactly what the rule on immutability of judgments seeks to address. A losing party
cannot endlessly evade an obligation by filing appeal after appeal. Nor can a
winning party continuously demand for more than what has been adjudged in his
favor by asking the court to repeatedly reconsider his/her claims. There must be an

end to litigation. Controversies cannot drag on indefinitely because fundamental
considerations of public policy and sound practice demand that the rights and
obligations of every litigant must not hang in suspense for an indefinite period of
time.34
The NPC and OSG's mistaken belief that they could repeatedly raise the same
defenses in the hopes of securing a judgment in their favor has even led the Court
to find them guilty of indirect contempt after they refused to comply with Our
Resolution dated December 8, 2008.
The Court En Banc properly resolved to accept the case
Both respondents request that the present case be resolved by the Court en
bane. While the NPC grounds its request on the subject matter's sizeable financial
impact, PSALM claims that there are conflicting rulings that may only be resolved
by the Court sitting en banc.
We agree with the NPC.
Verily, the Court has already struck down similar requests made previously by the
NPC.35 However, the following must be considered:
1. Based on the list submitted by the NPC36 pursuant to Our Resolution dated
October 20, 2014, a total of 9,272 former NPC employees stand to benefit from
the judgment award.
2. The NPC has estimated that these employees may be entitled to separation
pay amounting to at least ₱7,311,084,851.79. However, this amount still does not
include:
a. Back wages and other wage adjustments, and
b. Legal interest on the judgment debt, which started to accrue as early as October
10, 2008-the date when the Main Decision became final-and has continued to run
to this day, almost a decade after.
From these, it is clear that the present case's subject matter will have a huge
financial impact on the NPC and/or PSALM, both of which play major parts in the
country's electric power industry. Thus, a decision that may greatly affect the
284
operations of these entities may, in turn, also affect the rendition of their services
to the general public.
Cases of this nature are cognizable by the Court en bane, as provided in Rule 2,
Section 3(k) of Our Internal Rules, viz.:
SEC. 3. Court en bane matters and cases. -The Court en bane shall act on the
following matters and cases:
(k) Division cases where the subject matter has a huge financial impact on
businesses or affects the welfare of a community[.]
Matters Pending Court's Resolution
I. PSALM is directly liable for the judgment obligation
In Our Resolution dated June 30, 2014, we held that the separation benefits in the
present case were NPC's "existing liability" at the time of the EPIRA's enactment
and, thus, the same was transferred to PSALM. We explained:
The separation of NPC employees affected by its reorganization and privatization
was a foregone conclusion. In recognition of this, the EPIRA gave the assurance that
these employees shall receive the separation pay and other benefits due them
under existing laws, rules or regulations or be able to avail of the privileges under a
separation plan which shall be one and one-half month salary for every year of
service in the government. The employees' separation being an unavoidable
consequence of the mandated restructuring and privatization of the NPC, the
liability to pay for their separation benefits should be deemed existing as of the
EPIRA's effectivity, and were thus transferred to PSALM pursuant to Section 49 of
the law.37
In its Omnibus Motion dated August 22, 2015,38 PSALM denies this liability by
arguing as follows: (a) The liability to pay the separation benefits only arose after
the effectivity of the EPIRA, (b) It was not among the obligations exclusively listed
under the EPIRA for which PSALM shall be liable; and (c) NPC remains to be solely
liable.
We disagree with PSALM.

The Court already held that herein petitioners are entitled to separation pay in lieu
of reinstatement, plus back wages and other wage adjustments, less separation pay
already received by virtue of the restructuring plan because they were illegally
dismissed. Thus, to clarify, the liability is not limited just to separation pay but to
the full entitlement of an illegally terminated employee, as We will further qualify
below.
A. The General Rule
The settled rule is that an employer who terminates the employment of its
employees without lawful cause or due process of law is liable for illegal
dismissal.39
When the EPIRA mandated the NPC's privatization, it directed the sale, disposition,
change and transfer of ownership and control of NPC's assets and IPP
contracts40 for the purpose of pooling funds to liquidate NPC's liabilities. This
transaction is akin to an asset sale-type corporate acquisition in the law of mergers
and acquisitions where one entity-the seller-sells all or substantially all of its assets
to another-the buyer.41
In SME Bank, Inc. v. De Guzman,42 we held that the rule in asset sales is that the
employees may be separated from their employment, but the seller is liable for the
payment of separation pay; on the other hand, the buyer in good faith is not
required to retain the affected employees in its service, nor is it liable for the
payment of their claims.
This is consistent with Our ruling in Sundowner Development Corporation v.
Drilon,43 that unless expressly assumed, labor contracts such as employment
contracts and collective bargaining agreements are not enforceable against a buyer
of an enterprise, labor contracts being in personam, thus binding only between the
seller-employer and its employees.
Following these rules, the NPC, as employer, is liable for the illegal dismissal and, in
effect, the payment of the petitioners' entitlement.
B. The Exceptions
There are however recognized exceptions to the general rule, where the
employer's liability for the separation of its employees is nonetheless devolved
upon the transferee of the employer's assets.
285
1. The transferee acknowledges the contractual obligation to be liable for
separation pay
In Republic v. National Labor Relations Commission,44 the government acquired
Bicolandia Sugar Development Corporation (Bisudeco)'s assets and identified the
same for privatization. Pursuant to the privatization, the assets were transferred to
the Asset Privatization Trust (APT) for conservation, provisional management, and
disposal. We recognized that, as a mere transferee/conservator of Bisudeco's
assets, the APT did not substitute Bisudeco as employer. The transfer was not for
the purpose of continuing the latter's business. However, We found that the APT
issued a resolution authorizing the payment of the Bisudeco employees' separation
benefits. Thus, through the resolution, the APT acknowledged its contractual
obligation to be liable for benefits arising from an employer-employee relationship
even though, as a mere conservator of assets, it was not supposed to be liable.
2. The transferee assumes the obligation through a transfer document
On the other hand, in Bank of the Philippine Islands v. BPI Employees Union-Davao
Chapter-Federation of Unions in BPI Unibank,45 pursuant to a corporate merger, the
assets and liabilities of Far East Bank & Trust Company, the absorbed corporation,
were transferred to the Bank of the Philippine Islands (BPI), the surviving entity.
We recognized that employment is a personal consensual contract. Thus, in
mergers, the absorbed corporation's employment contractsare not automatically
absorbed by the surviving entity. However, the liability for separation and other
benefits due to the absorbed corporation's former employees can be transferred to
the surviving entity if the latter clearly assumed the obligation pursuant to
the articles of merger.
C. The Present Case Falls Within the Exceptions
We reiterate Our finding in Our Resolution dated June 30, 2014 that, upon the
NPC's privatization, PSALM assumed all of its liabilities, including the separation
benefits due to the petitioners.
That PSALM assumed the NPC’s liability to pay these separation benefits is clear
based on the following reasons: (1) The liability was already existing at the time of
the EPIRA's effectivity and was transferred from NPC to PSALM by virtue of Section
49 of the law; (2) It is a "Transferred Obligation" as defined under the Deed of
Transfer; and (3) Under the EPIRA, PSALM is duty-bound to settle the subject
liability.

1. The subject liability was existing at the time of the EPIRA's effectivity and was
transferred from NPC to PSALM by virtue of Section 49 of the law
The EPIRA provides:
SECTION 49. Creation of Power Sector Assets and Liabilities Management
Corporation. - There is hereby created a government-owned and -controlled
corporation to be known as the "Power Sector Assets and Liabilities Management
Corporation," hereinafter referred to as the "PSALM Corp.," which shall take
ownership of all existing NPC generation assets, liabilities, IPP contracts, real estate
and all other disposable assets. All outstanding obligations of the NPC arising from
loans, issuances of bonds, securities and other instruments of indebtedness shall
be transferred to and assumed by the PSALM Corp. within one hundred eighty
(180) days from the approval of this Act. (Emphasis supplied.
In Our Resolution dated June 30, 2014, the Court explained that the term "existing"
in Section 49 qualified "liabilities" to mean that only those liabilities existing at the
time of the EPIRA's effectivity were subject of the transfer.
Verily, the liability (to pay separation benefits) here arose due to the petitioners'
illegal dismissal. However, the separation from employment per se took place only
pursuant to the EPIRA's mandate on NPC's privatization and restructuring, except
that its implementation through NPB Resolution Nos. 2002-124 and 2002-125 was
later on invalidated.
Stated differently, since the EPIRA mandated the NPC's privatization and
subsequent restructuring, the law, when it took effect on June 26, 2001, had
already contemplated the termination of all NPC employees as a logical effect of its
mandate. To be sure, the liability to pay the full entitlement arising from the
employees' separation is deemed to have existed upon the EPIRA's effectivity.
Thus, PSALM assumed the liability to pay the petitioners' full entitlement in the
present case because: (a) Section 49 of the EPIRA mandated the transfer of
all existing NPC liabilities to PSALM, and (b) Such liability was already existing at the
time of the EPIRA's effectivity.
2. The subject liability is a "Transferred Obligation" as defined under the Deed of
Transfer
Under the EPIRA, following are valid claims against PSALM:
286
SECTION 56. Claims Against the PSALM Corp. - The following shall constitute the
claims against the PSALM Corp.:
(a) NPC liabilities transferred to the PSALM Corp.;
(b) Transfers from the National Government;
(c) New Loans; and
(d) NPC stranded contract costs. (Emphasis supplied.)
In the Deed of Transfer46 executed between them, the NPC and PSALM laid out the
scope of the term "liabilities transferred" by differentiating their responsibilities
over "Transferred Obligations" and "Contingent Liabilities."
On the one hand, PSALM assumed all of NPC's Transferred Obligations, which
included all other liabilities and obligations of the NPC: (a) mandated by the EPIRA
to be transferred to PSALM, and (b) which have been validated, fixed and finally
determined to be legally binding on NPC by the proper authorities.47
In contrast, NPC agreed to be solely responsible for its Contingent Liabilities or
those as of the transfer date have not yet been validated, fixed, and finally
determined to be legally binding on NPC.48
Based on these provisions, it appears that the parties delineated their responsibility
over NPC liabilities that arose as a result of a final determination of a proper
authority, such that if such final determination has not yet been made as of the
transfer date it is a Contingent Liability. Otherwise, it is a Transferred Obligation for
which PSALM assumes responsibility.
Thus, the liability to pay the petitioners' separation benefits satisfies the conditions
giving rise to a Transferred Obligation.
Our Rulings finally determined that the liability is legally binding and enforceable
against the NPC
A plain reading49 of the provisions in the Deed of Transfer will reveal that a final
judgment rendered by a court with competent jurisdiction holding the NPC liable

for an obligation falls within the meaning of a liability "validated, fixed, and finally
determined to be legally binding on NPC."
To emphasize, We adjudged that the NPC's liability for the petitioners' illegal
dismissal and, consequently, the payment of their full entitlement was the logical
and necessary effect of the nullification of NPB Resolution Nos. 2002-124 and 2002-
125. Our ruling lapsed into finality on October 10, 2008.50 Clearly, Our Ruling
constitutes a final determinationthat the liability is legally binding and enforceable
against the NPC.
Our final determination of the liability was made as of the transfer date
If there had already been a final determination of the NPC's liability, the next
question is: Was the final determination made as of the transfer date?
We answer in the affirmative.
According to the Deed of Transfer, the "transfer date" is "the date on which all of
the conditions precedent are either fulfilled or are waived."51 While it would
appear that the parties have executed such a waiver,52 there is no indication in Our
records of the exact date of execution, other than NPB Resolution No. 2009-
40,53 which refers to October 1, 2008 as the date of "transfer of assets and
liabilities" of the NPC to PSALM.
However, upon further examination,54 both the NPC55 and PSALM56 disclosed in
their respective COA-audited financial statements that the actual transfer date was
on December 31, 2008. The "transfer of assets and liabilities" that took place on
October 1, 2008 was merely the transfer of "asset-debt accounts" from the NPC's
books of account to PSALM's.57
To be clear, the liability was finally determined by the Court on October 10, 2008,
the date of Our Ruling's finality, or before December 31, 2008, the actual transfer
date recognized by the parties. Thus, the liability should be considered as a
Transferred Obligation, the responsibility for which was passed on to PSALM
pursuant to the terms of the Deed of Transfer.
3. Under the EPIRA, PSALM is duty-bound to settle the subject liability.
PSALM was created under the EPIRA for the principal purpose of privatizing the
NPC's generation assets, real estate and other disposable assets, and IPP contracts
287
with the ultimate objective of liquidating all NPC financial obligations and stranded
contract costs.58 It is empowered to take possession of, administer, and conserve,
and subsequently sell or dispose the assets transferred to it pursuant to its
established purpose.59
In 2012, PSALM disclosed60 that the joint boards of directors of the NPC and PSALM
authorized utilization of the privatization proceeds to pay the NPC's principal and
other financial obligations. The proceeds from privatization shall include not only
the proceeds from sale and disposition of NPC's generation and other disposable
assets but also the proceeds from NPC's net profits.61
Without a doubt, PSALM is statutorily mandated not only to privatize NPC's
generation assets, but also to manage the proceeds obtained from privatization
including its net profits and use these proceeds to settle all of NPC's financial
obligations, without exception.
This blanket responsibility is evident from PSALM's role even in the settlement of
the NPC's Contingent Liabilities. Under the Deed of Transfer, while the NPC shall
retain sole responsibility of a Contingent Liability, PSALM shall nonetheless provide
for a mechanism to allow the NPC to satisfy the claim through, for example, a
reserve fund or a provision under the Operation and Maintenance Agreement or
any other agreement to be entered into by the parties.62Thus, whether or not the
NPC has been finally determined to be liable for the claim, PSALM must see to it
that the same is settled.
All told, PSALM expressly undertook all NPC Transferred Obligations under Section
3.01 of the Deed of Transfer, which, as previously discussed, includes the liability to
pay the petitioners' entitlement. Thus, it is now bound to ensure that it is settled.
Even if We rule that the liability was not a Transferred Obligation nor was it ever
voluntarily assumed under the Deed of Transfer, it is still clear that the law itself
mandated PSALM to satisfy the same. PSALM's obligation is provided in: (a) Section
49 of the EPIRA, where it was directed to take ownership of all existing NPC
liabilities; and (b) Section 50 of the EPIRA, where it was mandated to
liquidate all NPC financial obligations.
Clearly, PSALM cannot now turn its back on an obligation that is both contractual
and statutory. Although the liability was initially imposed upon the NPC as the
petitioners' employer, the responsibility for its satisfaction now rests with PSALM.

This ruling is not affected by Section 4, Rule 3363 of the EPIRA IRR, which provides
that the "funds necessary to cover the separation pay" of all NPC employees
displaced as a result of the restructuring plan "shall be provided either by the
Government Service Insurance System (GSIS) or from the NPC's corporate funds."
As it now stands, after privatization, We find that the NPC's corporate funds are
largely within PSALM's control.
Prior to the EPIRA, the NPC performed and derived corporate funds from three
main functions: generation, transmission, and missionary electrification. Upon
privatization, the NPC divested its generation and transmission assetsbut continued
operations as to its missionary electrification function, viz.:
SECTION 70. Missionary Electrification. - Notwithstanding the divestment and/or
privatization of NPC assets, IPP contacts and spun-off corporations, NPC shall
remain as a National Government-owned and -controlled corporation to perform
the missionary electrification function through the Small Power Utilities Group
(SPUG) and shall be responsible for providing power generation and its associated
power delivery systems in areas that are not connected to the transmission system.
The missionary electrification function shall be funded from the revenues from
sales in missionary areas and from the universal charge to be collected from all
electricity end-users as determined by the ERC.64 (Emphases supplied.)
The generation function having been devolved to PSALM, all net profits from its
operations also accrued in their favor after the date of transfer.65
On the other hand, the revenues from missionary electrification function retained
by the NPC are collected from end-users via the universal charge. However, all
collections of the universal charge shall be remitted monthly to PSALM. In turn,
PSALM, acting as administrator, shall create a Special Trust Fund, which shall be
disbursed only for the purposes specified by the EPIRA in an open and transparent
manner.66
PSALM's control over the NPC's corporate funds is consistent with its principal
purpose of privatizing the NPC's generation assets and ultimate objective of
liquidating all NPC financial obligations and stranded contract costs. Thus, this
control makes it clear that PSALM is now directly responsible for the settlement of
the liability due to the petitioners.
288
II. The RTC cannot directly proceed with the execution before a separate money
claim is filed with and approved by the COA
While PSALM is directly liable for the payment of the petitioners' entitlement, the
proper procedure to enforce a judgment award against the government is to file
a separate action before the COA for its satisfaction.67
We have consistently ruled that the back payment of any compensation to public
officers and employees cannot be done through a writ of execution.68 The COA has
exclusive jurisdiction to settle "all debts and claims of any sort due from or owing
to the Government or any of its subdivisions, agencies, and
instrumentalities."69 The proper procedure to enforce a judgment award against
the government is to file a separate action before the COA for its satisfaction. 70
A. Parties' compliance to Our Resolution dated October 20, 2014
In the present case, We have noted the parties' respective compliance to Our
Resolution dated October 20, 2014, directing them to submit a complete list of NPC
employees affected by the NPC restructuring, as well as their respective
computations of the petitioners' entitlement.
In particular, the NPC, through their Compliance Ad Cautelam dated March 16,
2017,71 listed 9,272 employees and provided its own computation of the amounts
each employee is supposedly entitled to and other details as required by the Court
(NPC List and Computation).72
For their part,73 PSALM points out that it could only provide a list of 46 former NPC
employees subsequently employed by PSALM since it does not have on record the
total number of NPC employees prior to the restructuring.
On the other hand, the petitioners fully adopted the NPC List and Computation.74
B. The Court's Ruling vis-à-vis the COA's Jurisdiction
The NPC List and Computation is by no means final and binding either on the Court
or the COA, regardless of the petitioners' acceptance and admission of the same. It
is still subject to the COA's validation and audit procedures.

To enforce the satisfaction of the judgment award, the amount of which has
been provisionally computed in the NPC List and Computation, the petitioners must
now go before the COA and file a separate money claim against the NPC and
PSALM. Whether the claim shall be allowed or disallowed is for the COA to decide,
subject only to the remedy of appeal by petition for certiorari to this Court.75
In other words, while the Court has determined that PSALM, a government
owned and controlled corporation, is liable to the petitioners, it is for the COA to
ascertain the exact amount of its liability in accordance with its audit rules and
procedures, after a separate money claim for the satisfaction of the judgment
award is properly filed.
III. Guidelines on the computation of the petitioners' entitlement
Inasmuch as the final judgment award will be re-computed and validated by the
COA upon the filing of a separate money claim, We deem it proper and prudent to
lay out guidelines precisely governing the petitioners ' entitlement-alogical and
necessary effect of the invalidation of NPB Resolution Nos. 2002-124 and 2002-125
and their illegal dismissal.
To dispel any notion that the Court, with these guidelines, is preempting the COA's
jurisdiction, We clarify that these rules govern only the general formula by which
the judgment award shall be computed.
Verily, jurisprudence is replete with general principles on the computation of
separation pay in lieu of reinstatement, back wages, and other money claims filed
by illegally dismissed employees. However, these guidelines are tailor-fitted to
the extraordinary circumstances surrounding ~he facts of the present case and in
accordance with Our previous rulings, the EPIRA and its IRR, and other applicable
laws.
These guidelines shall aid the COA in determining, re-computing, and validating the
amount due to the petitioners.
In this regard, PSALM raises points for the Court's consideration, viz.:
1. There were two reorganizations undertaken in NPC - 2003 and 2013.
2. The approval of NPB Resolution No. 2007-55 on September 14, 2007 meant that
the services of all NPC employees have been legally terminated on this date.
289
3. There were NPC officials and employees that were rehired by the government
and immediately reported for work the day after their termination from NPC as a
consequence of the 2003 reorganization x x x. The effect of such continued
employment with the NPC or with other government agencies x x x should be
considered.
4. The number of NPC employees might have included contractual employees or
those having a fixed-term of employment.
5. A separation package was given to NPC employees that operated the generation
assets upon these assets' privatization.
6. There were NPC employees who were rehired in 2003 but subsequently
tendered their resignation prior to the issuance of NPB Resolution No. 2007-55.76
At the onset, We emphasize that the petitioners went before the Court and
assailed the validity of NPB Resolution Nos. 2002-124 and 2002-125, which directed
the termination of all NPC employees effective January 31, 2003 (2003
Reorganization). Thus, the Court's ruling invalidating these resolutions could only
affect the restructuring plan implemented in 2003. The implementation of any
other restructuring plan, like the one in 2013, as PSALM points out, cannot affect
the computation of the judgment award in the present case. It is not a matter
presented for the Court's resolution.
Summary of Petitioners' Entitlement
Again, the petitioners' entitlement consists of the following: (a) separation pay in
lieu of reinstatement; (b) backwages; (c) wage adjustments; minus any separation
pay already received under the restructuring plan.
A. Separation pay in lieu of reinstatement
The established rule is that an illegally dismissed civil service employee shall be
entitled to reinstatement plus backwages.77 This rule is echoed in Section 9 of
Republic Act No. 6656,78 which relates specifically to illegal dismissals due to a
government agency restructuring plan found to be invalid.
However, when an entirely new set-up takes the place of the entity's previous
corporate structure, the abolition of positions and offices cannot be avoided, thus,
making reinstatement impossible.79 In which case, separation pay shall be

awarded in lieu of reinstatement.80 The award of separation pay in illegal dismissal
cases is an accepted deviation from the general rule of ordering reinstatement
because the law cannot exact compliance with what is impossible.81
Under the law, the separation pay in lieu of reinstatement due to each petitioner
shall be either the: (1) Separation pay under the EPIRA and the NPC restructuring
plan; or (2) Separation gratuity under Republic Act No. 6656, depending on
their qualifications.
1. Separation pay under the EPIRA and the NPC restructuring plan
Republic Act No. 6656, the general law governing corporate reorganizations in the
civil service, provides that the separation pay due to entitled civil service
employees separated pursuant to a reorganization plan shall be the appropriate
separation pay and retirement and other benefits under existing laws, which in this
case is the EPIRA mandating the NPC restructuring plan.
A person is qualified to receive separation benefits under the NPC's restructuring
plan if the following requirements concur: (a) he/she is an official or employee
whose employment was severed pursuant to the privatization of the NPC;82(b)
he/she has rendered at least one year of service as of June 26, 2001 ;83 (c) he/she
must not have qualified or opted to retire under existing laws;84 and (d) if a casual
or contractual employee, he/she must have had his/her appointment approved or
attested to by the csc.85
If qualified, the employee shall receive separation pay under the NPC restructuring
plan, which is equal to one and one-half months' salary for every year of service in
the government.86 To clarify, the formula to compute the amount of separation
pay has three components, viz.: (a) base amount, consisting of the monthly salary;
(b) multiplier of one and one-half months or 1.5; and (c) length of service.
As for the first component, the EPIRA IRR clearly defines "salary" as the basic
pay including the 13th month pay received by an employee pursuant to his
appointment but excluding per diems, bonuses, overtime pay, honoraria,
allowances and any other emoluments received in addition to the basic pay under
existing laws.87 In other words, the "base amount" must consist of basic pay or
salary and 13th month pay exclusively.
2. Separation gratuity under Republic Act No. 6656
290
If the person does not meet all the above-mentioned requirements (i.e., he/she is a
contractual employee whose appointment was not approved by the CSC, etc.) but
was separated pursuant to the restructuring, he/she is not qualifiedto receive the
separation pay under the NPC's restructuring plan but is nonetheless entitled to
a separation gratuityprovided in Republic Act No. 6656 in the amount equivalent to
one month basic salary for every year of service.88
Reckoning period
Both the separation pay under the NPC restructuring plan and separation
gratuity under Republic Act No. 6656 entitle the employee to benefits based on the
number of years of service rendered. While there is no question that length of
service shall be counted from the first year of employment of each petitioner, We
now clarify when this period must end.
Again, separation pay is awarded in this case because the petitioners could no
longer be reinstated due to the abolition of their former positions and overall
restructuring of the NPC. Thus, for purposes of computing separation pay in lieu of
reinstatement, the length of service shall be computed until the time
reinstatement was rendered impossible.89
In the present case, the petitioners' reinstatement became impossible when their
illegal dismissal was subsequently validated by the issuance of NPB Resolution No.
2007-55 on September 14, 2007,90 as correctly pointed out by PSALM.
Thus, for purposes of computing the petitioners' separation pay, their years of
service shall be counted from their first year of employment until September 14,
2007, unless in the meanwhile, they would have reached the compulsory
retirement age of sixty-five years.
B. Back wages
We have consistently ruled that an illegally dismissed government employee is
entitled to back wages from the time of his illegal dismissal until his reinstatement
because he is considered as not having left his office.91 Following Galang v. Land
Bank of the Philippines,92 back wages shall be computed based on the most recent
salary rate upon termination.
Reckoning period

1. Start date
The rationale in awarding back wages is to recompense the illegally dismissed
employee for the entire period of time that he/she was wrongfully prevented from
performing the duties of his/her position and from enjoying its benefits because, in
the eyes of the law, he/she never truly left office.93 Thus, as a rule, it is reckoned
from the time of illegal termination. Verily, NPB Resolution Nos. 2002-124 and
2002-125 directed the termination from service of all NPC employees effective
January 31, 2003. However, the NPC subsequently issued NPC Circular No. 2003-09
setting forth four different dates of effectivity, viz.:
Group Effective date of termination
a) Top executives January 31, 2003
b) Early-leavers94 January 15, 2003
c) Those no longer employed after June 26, 200195 Date of actual separation
d) All other NPC personnel February 28, 2003
Thus, back wages shall be counted from each group's respective effective date of
termination, as the case may be.
2. End date
As a rule, back wages shall be computed until actual reinstatement. However, since
reinstatement is no longer possible in this case, it must be computed from the
petitioners' effective dates of termination until September 14, 2007 or the
petitioners' date of retirement, in case petitioners retired after the effective date
of termination but before September 14, 2007.96
To be clear, the computation of separation pay is based on the length of the
employee's service; and the computation of back wages is based on the actual
period when the employee was unlawfully prevented from working.97 While these
two awards are reckoned from different dates, both are computed in the present
case until September 14, 2007 or the date of retirement, whichever is earlier. The
period of overlap is proper because the period where back wages are awarded
must be included in the computation of separation pay.98
291
Effect of employment in the civil service immediately succeeding termination
In the recent case of Campol v. Balao-As,99 the Court explained at length the
rationale supporting the award of full back wages in favor of an illegally dismissed
civil service employee, without deducting any income that he may have earned in
case he is employed anew in another government position during the pendency of
the action. In Campo, the Sangguniang Bayan (SB) of Boliney, Abra passed a
resolution in 2004 terminating Julius B. Campol as SB Secretary. In 2005, while his
illegal termination case was still pending, Campol obtained another job as an
administrative aide in the Public Attorney's Office. The Court ruled that Campol's
PAO earnings should not be deducted from the award of full backwages, explaining
as follows:
This entitlement to full backwages also means that there is no need to deduct
Campol's earnings from his employment with PAO from the award. The right to
receive full backwages means exactly this - that it corresponds to Campol's salary at
the time of his dismissal until his reinstatement. Any income he may have obtained
during the litigation of the case shall not be deducted from this amount. This is
consistent with our ruling that an employee illegally dismissed has the right to live
and to find employment elsewhere during the pendency of the case. At the same
time, an employer who illegally dismisses an employee has the obligation to pay
him or her what he or she should have received had the illegal act not be done. It is
an employer's price or penalty for illegally dismissing an employee.100 (Emphases
supplied.)
The Court further explained that this is also the prevailing doctrine in the award of
back wages in the private sector, as previously held in Bustamante v. National
Labor Relations Commission101 and Equitable Banking Corporation v. Sadac.102
However, We revisit Our ruling in Campol. We agree with Hon. Justice Antonio T.
Carpio's opinion that the award of full back wages in favor of an illegally dismissed
civil service employee who was subsequently employed in another government
agency certainly violates the constitutional prohibitions against double office-
holding103 and double compensation in the civil service.104
Section 7, Article IX-B of the Constitution provides:
Section 7. No elective official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure.

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.
On the other hand, Section 8, Article IX-B of the Constitution provides:
SECTION 8. No elective or appointive public officer or employee shall receive
additional, double, or indirect compensation, unless specifically authorized by law,
nor accept without the consent of the Congress, any present, emolument, office, or
title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double, or indirect
compensation.
Thus, We rule that petitioners who were subsequently: (a) rehired by the NPC, (b)
absorbed by PSALM or Transco, or (c) transferred or employed by other
government agencies, are not entitled to back wages.
Moreover, to award full back wages even to those who remained employed as a
direct result of the 2003 reorganization amounts to unjust enrichment and damage
to the government.
In the present case, the EPIRA and its IRR established policies governing the
subsequent placement of all NPC employees affected by the restructuring, viz.: (a)
giving the NPC board of directors the sole prerogative to hire the separated
employees as new employees and to assign them to new positions with the
corresponding compensation in accordance with its restructuring program; and (b)
entitling qualified displaced or separated personnel to preference in the hiring of
the manpower requirements of PSALM and Transco.105
Pursuant to these policies and as pointed out by PSALM, there were NPC
employees who were: (a) rehired by NPC or (b) absorbed by PSALM or Transco as a
direct result of the 2003 reorganization (Rehired or Absorbed NPC Personnel).
These personnel immediately reported for work the day after their termination
from NPC. True enough, a perusal of NPC's list of employees submitted in
compliance to Our Resolution dated October 20, 2014 reveals that a majority of the
listed personnel were either rehired by NPC or absorbed by PSALM or Transco on
March 1, 2003 or within March 2003.
292
These circumstances lend peculiarity to the present case, setting it apart
from Campol, Bustamante, and Equitable Banking Corporation. The novelty of this
case's factual backdrop is even more evident in the following:
First, it is important to note that there was no break or gap in the rehired or
absorbed NPC personnel's government service. They continuously had employment
and a means to receive regular and periodic compensation. Thus, they were not
deprived of the right to live nor prevented from earning a living to support their
daily expenses and financial obligations. Moreover, they were not forced to seek
employment elsewhere, because they were able to capitalize on the statutory
preference given to them in filling up the manpower requirements in PSALM or
Transco. Obviously, the evil sought to be avoided in the above-cited jurisprudence
does not exist insofar as the rehired or absorbed NPC personnel are concerned.
Second, verily, the Court nullified NPB Resolution Nos. 2002-124 and 2002-125, and
consequently held that the herein petitioners were illegally dismissed. However, in
the meantime, NPC proceeded to implement these resolutions. As a result, some of
the petitioners were re-employed by NPC or hired by PSALM or Transco. In other
words, while they may have been illegally dismissed, it cannot be denied that the
rehired or absorbed NPC personnel nonetheless benefitted from the now-defunct
NPB resolutions when they continued to be employed in the government and
receive compensation for their service.
To allow them: (a) to enjoy, without reimbursement, the employee benefits they
earned as rehired or absorbed NPC employees after termination from NPC until
September 14, 2007 or the date of retirement, whichever is earlier
and simultaneously, and (b) to benefit from the award of full back wages covering
the same period is tantamount to permitting these personnel to occupy multiple
positions in the civil service (i.e., their original position in the NPC andtheir new
position in the NPC, PSALM, or Transco after the reorganization) and to receive
benefits separately for each of those positions.
It is clear that sustaining the effects of these NPB resolutions prior to nullification is
incompatible with upholding the prevailing doctrine on the award of full back
wages as a result of illegal separation after the same NPB resolutions were
invalidated.
On the other hand, petitioners who were neither rehired by the NPC or absorbed
by PSALM or Transco pursuant to the 2003 reorganization and subsequently
employed in the private sector shall be entitled to full back wages
(applying Bustamante and Equitable Banking Corporation).

C. Wage Adjustments and Other Benefits
In addition, We have also ruled that back wages should include other monetary
benefits attached to the employee's salary following the principle that an illegally
dismissed government employee who is later reinstated is entitled to all the rights
and privileges that accrue to him/her by virtue of the office he/she held.106
D. Separation pay already received under the restructuring plan
Recall that the Court did not issue a temporary restraining order or a preliminary
injunction to enjoin the implementation of NPB Resolution Nos. 2002-124 and
2002-125. In effect, the NPC proceeded with the implementation of the
restructuring plan, the termination of the petitioners' employment,107 and
consequently the payment of the personnel's separation pay under the plan.
Thus, while the petitioners are entitled to separation pay in lieu of reinstatement,
back wages, and other wage adjustments, the amount they shall receive must be
reduced by any separation pay each of them has already received under the
separation plan.
Interest and Attorney's Lien
A. Attorney's lien
In Our Resolution dated September 17, 2008, we approved a charging lien in favor
of Attys. Aldon and Orocio. Their lien shall be 10% of the petitioners' entitlement,
after deducting the separation pay already received by the petitioners under the
restructuring plan.
B. Legal interest
Aside from the petitioners' above-mentioned entitlement, the amount due shall
earn interest at the legal rate.108 The payment of legal interest is a "natural
consequence of a final judgment."109
As We held in Eastern Shipping Lines, Inc. v. Court of Appeals,110 interest at the
legal rate of 12%, per annum shall accrue from the finality of judgment until the
judgment award is fully settled. However, pursuant to Nacar v. Galleray
293
Frames,111 beginning July 1, 2013, the legal rate of 6°/o per annum shall apply by
virtue of Central Bank Circular No. 799.
To be sure, the judgment award in this case upon which interest shall accrue is
the petitioners' entitlement after deducting the separation pay already received
by the petitioners under the restructuring plan and the 10% charging. lien. The
exclusion of the charging lien from the amount of judgment award to be used as a
basis in accruing legal interest is only proper considering that in Bach v. Ongkiko
Ka/aw Manhit & Acorda Law Offices,112 the Court categorically held that legal
interest must not be imposed on attorney's fees.
Following these principles, interest on the judgment award shall be computed as
follows: (1) 12% per annum fromOctober 8, 2008,113 until June 30, 2013; and
(2) 6% per annum/ram July 1, 2013 onwards.
WHEREFORE, the Court resolves to:
1. GRANT PSALM's prayer to lift and quash the Demand for Immediate
Payment and the Notices of Garnishment issued against it and the NPC;
2. DENY the petitioners' request to immediately execute the judgment
award; and
3. DIRECT the petitioners to file a claim against the government before
the Commission on Audit, pursuant to its rules, which shall be resolved in
accordance with the guidelines herein set forth.
SO ORDERED.
I. Short Title: NPC-DAMA v. NPC
II. Full Title: NPC Drivers and Mechanics Association (NPC-DAMA) versus National
Power Corporation (NPC) – G.R. No. 156208, September 26, 2006, C.J. Panganiban
III. Statement of Facts:
On June 8, 2001, Republic Act No. 9136 or the “Electric Power Industry Reform Act
of 2001” (EPIRA Law) was approved and signed by President Macapagal-Arroyo. It

provides a framework for the restructuring of the electric power industry,
specifically (1) the privatization of the assets of NPC, (2) the transition to the
desired competitive structure, and (3) the definition of the responsibilities of the
various government agencies and private entities.
Thus, under such law, a new National Power Board of Directors (NPB) was
constituted.
On February 27, 2002, in pursuant of the EPIRA Law, the Energy Restructuring
Steering Committee (Restructuring Committee) was created by the Secretary of the
Department of Energy to enact the first and second provisions stated above.
On November 18, 2002, the Restructuring Committee proposed a guideline to the
NPB which was modified and passed by the latter through Resolutions No. 2002-
124 and No. 2002-125. Said Resolutions provide that (1) all NPC personnel shall be
legally terminated on January 31, 2003 and (2) the NPC personnel shall be entitled
to separation benefits.
IV. Statement of the Case
Petitioners filed a Petition for Injunction which assails the validity of the NPB
Resolutions by maintaining that no quorum existed during the NPB Resolutions
meeting. Petitioners argue that of the seven persons present in the meeting, only
three are NPB members. The remaining four are merely representatives of other
NPB members not present in the said meeting thus, rendering the said Resolutions
void.
V. Issue
Whether or not NPB Resolutions No. 2002-124 and No. 2002-125 were properly
enacted.
VI. Ruling
No, it was not. The legislature is the one who vested the power to exercise
judgment and discretion in running the affairs to the NPB. Discretion means a
power or right conferred to them by law of acting officially in certain
circumstances, according to the dictates of their own
294
judgment and conscience, uncontrolled by the judgment or conscience of others.
Hence, the court held that the department secretaries cannot delegate their duties
as members of the NPB, much less their power to vote and approve board
resolutions because it is their personal judgment that must be exercised in the
fulfillment of such responsibility.
There are also exemptions to the general rule. It was also held in the case of
Binamira v. Garrucho that:
“An officer to whom discretion is entrusted cannot delegate it to another, the
presumption being that he was chosen because he was deemed fit and competent
to exercise that judgment and discretion, and unless given the power to substitute
another in his place has been given to him, he cannot delegate his duties to
another”.
And in the case of American Tobacco Company v. Director of Patents:
“A delegate may exercise his authority through persons he appoints to assist him in
his functions…only when judgment and discretion finally exercised are those of the
officer authorized by law…so long as it is the legally authorized official who makes
the final decision through the use of his own personal judgment”.
In the case at bar, however, it is the representatives of the secretaries of the
different executive departments and not the secretaries themselves who exercised
judgment in passing the assailed Resolution.
VII. Dispositive Portion
Wherefore, National Power Board Resolutions No. 2002-124 and No. 2002-125 are
declared VOID and WITHOUT LEGAL EFFECT.

FIRST DIVISION
August 19, 2013
DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,
vs.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
DECISION
This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch (petitioner)
under Rule 45 of the 1997 Rules of Civil Procedure assailing the Court of Tax
Appeals En Banc (CTA En Banc) Decision2 dated 29 May 2009 and Resolution3 dated
1 July 2009 in C.T.A. EB No. 456.
THE FACTS
In accordance with Section 28(A)(5)4 of the National Internal Revenue Code (NIRC)
of 1997, petitioner withheld and remitted to respondent on 21 October 2003 the
amount of PHP 67,688,553.51, which represented the fifteen percent (15%) branch
profit remittance tax (BPRT) on its regular banking unit (RBU) net income remitted
to Deutsche Bank Germany (DB Germany) for 2002 and prior taxable years.5
Believing that it made an overpayment of the BPRT, petitioner filed with the BIR
Large Taxpayers Assessment and Investigation Division on 4 October 2005 an
administrative claim for refund or issuance of its tax credit certificate in the total
amount of PHP 22,562,851.17. On the same date, petitioner requested from the
International Tax Affairs Division (ITAD) a confirmation of its entitlement to the
preferential tax rate of 10% under the RP-Germany Tax Treaty.6
Alleging the inaction of the BIR on its administrative claim, petitioner filed a
Petition for Review7 with the CTA on 18 October 2005. Petitioner reiterated its
claim for the refund or issuance of its tax credit certificate for the amount of PHP
22,562,851.17 representing the alleged excess BPRT paid on branch profits
remittance to DB Germany.
THE CTA SECOND DIVISION RULING
295
After trial on the merits, the CTA Second Division found that petitioner indeed paid
the total amount of PHP 67,688,553.51 representing the 15% BPRT on its RBU
profits amounting to PHP 451,257,023.29 for 2002 and prior taxable years. Records
also disclose that for the year 2003, petitioner remitted to DB Germany the amount
of EURO 5,174,847.38 (or PHP 330,175,961.88 at the exchange rate of PHP
63.804:1 EURO), which is net of the 15% BPRT.
However, the claim of petitioner for a refund was denied on the ground that the
application for a tax treaty relief was not filed with ITAD prior to the payment by
the former of its BPRT and actual remittance of its branch profits to DB Germany,
or prior to its availment of the preferential rate of ten percent (10%) under the RP-
Germany Tax Treaty provision. The court a quo held that petitioner violated the
fifteen (15) day period mandated under Section III paragraph (2) of Revenue
Memorandum Order (RMO) No. 1-2000.
Further, the CTA Second Division relied on Mirant (Philippines) Operations
Corporation (formerly Southern Energy Asia-Pacific Operations [Phils.], Inc.) v.
Commissioner of Internal Revenue9 (Mirant) where the CTA En Banc ruled that
before the benefits of the tax treaty may be extended to a foreign corporation
wishing to avail itself thereof, the latter should first invoke the provisions of the tax
treaty and prove that they indeed apply to the corporation.
THE CTA EN BANC RULING10
The CTA En Banc affirmed the CTA Second Division’s Decision dated 29 August 2008
and Resolution dated 14 January 2009. Citing Mirant, the CTA En Banc held that a
ruling from the ITAD of the BIR must be secured prior to the availment of a
preferential tax rate under a tax treaty. Applying the principle of stare decisis et
non quieta movere, the CTA En Banc took into consideration that this Court had
denied the Petition in G.R. No. 168531 filed by Mirant for failure to sufficiently
show any reversible error in the assailed judgment.11 The CTA En Banc ruled that
once a case has been decided in one way, any other case involving exactly the same
point at issue should be decided in the same manner.
The court likewise ruled that the 15-day rule for tax treaty relief application under
RMO No. 1-2000 cannot be relaxed for petitioner, unlike in CBK Power Company
Limited v. Commissioner of Internal Revenue.12 In that case, the rule was relaxed
and the claim for refund of excess final withholding taxes was partially granted.
While it issued a ruling to CBK Power Company Limited after the payment of
withholding taxes, the ITAD did not issue any ruling to petitioner even if it filed a
request for confirmation on 4 October 2005 that the remittance of branch profits

to DB Germany is subject to a preferential tax rate of 10% pursuant to Article 10 of
the RP-Germany Tax Treaty.
ISSUE
This Court is now confronted with the issue of whether the failure to strictly
comply with RMO No. 1-2000 will deprive persons or corporations of the benefit of
a tax treaty.
THE COURT’S RULING
The Petition is meritorious.
Under Section 28(A)(5) of the NIRC, any profit remitted to its head office shall be
subject to a tax of 15% based on the total profits applied for or earmarked for
remittance without any deduction of the tax component. However, petitioner
invokes paragraph 6, Article 10 of the RP-Germany Tax Treaty, which provides that
where a resident of the Federal Republic of Germany has a branch in the Republic
of the Philippines, this branch may be subjected to the branch profits remittance
tax withheld at source in accordance with Philippine law but shall not exceed 10%
of the gross amount of the profits remitted by that branch to the head office.
By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch in the
Philippines, remitting to its head office in Germany, the benefit of a preferential
rate equivalent to 10% BPRT.
On the other hand, the BIR issued RMO No. 1-2000, which requires that any
availment of the tax treaty relief must be preceded by an application with ITAD at
least 15 days before the transaction. The Order was issued to streamline the
processing of the application of tax treaty relief in order to improve efficiency and
service to the taxpayers. Further, it also aims to prevent the consequences of an
erroneous interpretation and/or application of the treaty provisions (i.e., filing a
claim for a tax refund/credit for the overpayment of taxes or for deficiency tax
liabilities for underpayment).13
The crux of the controversy lies in the implementation of RMO No. 1-2000.
Petitioner argues that, considering that it has met all the conditions under Article
10 of the RP-Germany Tax Treaty, the CTA erred in denying its claim solely on the
basis of RMO No. 1-2000. The filing of a tax treaty relief application is not a
296
condition precedent to the availment of a preferential tax rate. Further, petitioner
posits that, contrary to the ruling of the CTA, Mirant is not a binding judicial
precedent to deny a claim for refund solely on the basis of noncompliance with
RMO No. 1-2000.
Respondent counters that the requirement of prior application under RMO No. 1-
2000 is mandatory in character. RMO No. 1-2000 was issued pursuant to the
unquestioned authority of the Secretary of Finance to promulgate rules and
regulations for the effective implementation of the NIRC. Thus, courts cannot
ignore administrative issuances which partakes the nature of a statute and have in
their favor a presumption of legality.
The CTA ruled that prior application for a tax treaty relief is mandatory, and
noncompliance with this prerequisite is fatal to the taxpayer’s availment of the
preferential tax rate.
We disagree.
A minute resolution is not a binding precedent
At the outset, this Court’s minute resolution on Mirant is not a binding precedent.
The Court has clarified this matter in Philippine Health Care Providers, Inc. v.
Commissioner of Internal Revenue14 as follows:
It is true that, although contained in a minute resolution, our dismissal of the
petition was a disposition of the merits of the case. When we dismissed the
petition, we effectively affirmed the CA ruling being questioned. As a result, our
ruling in that case has already become final. When a minute resolution denies or
dismisses a petition for failure to comply with formal and substantive
requirements, the challenged decision, together with its findings of fact and legal
conclusions, are deemed sustained. But what is its effect on other cases?
With respect to the same subject matter and the same issues concerning the same
parties, it constitutes res judicata. However, if other parties or another subject
matter (even with the same parties and issues) is involved, the minute resolution is
not binding precedent. Thus, in CIR v. Baier-Nickel, the Court noted that a previous
case, CIR v. Baier-Nickel involving the same parties and the same issues, was
previously disposed of by the Court thru a minute resolution dated February 17,
2003 sustaining the ruling of the CA. Nonetheless, the Court ruled that the previous
case "ha(d) no bearing" on the latter case because the two cases involved different

subject matters as they were concerned with the taxable income of different
taxable years.
Besides, there are substantial, not simply formal, distinctions between a minute
resolution and a decision. The constitutional requirement under the first paragraph
of Section 14, Article VIII of the Constitution that the facts and the law on which the
judgment is based must be expressed clearly and distinctly applies only to
decisions, not to minute resolutions. A minute resolution is signed only by the clerk
of court by authority of the justices, unlike a decision. It does not require the
certification of the Chief Justice. Moreover, unlike decisions, minute resolutions are
not published in the Philippine Reports. Finally, the proviso of Section 4(3) of
Article VIII speaks of a decision. Indeed, as a rule, this Court lays down doctrines or
principles of law which constitute binding precedent in a decision duly signed by
the members of the Court and certified by the Chief Justice. (Emphasis supplied)
Even if we had affirmed the CTA in Mirant, the doctrine laid down in that Decision
cannot bind this Court in cases of a similar nature. There are differences in parties,
taxes, taxable periods, and treaties involved; more importantly, the disposition of
that case was made only through a minute resolution.
Tax Treaty vs. RMO No. 1-2000
Our Constitution provides for adherence to the general principles of international
law as part of the law of the land.15The time-honored international principle of
pacta sunt servanda demands the performance in good faith of treaty obligations
on the part of the states that enter into the agreement. Every treaty in force is
binding upon the parties, and obligations under the treaty must be performed by
them in good faith.16 More importantly, treaties have the force and effect of law in
this jurisdiction.17
Tax treaties are entered into "to reconcile the national fiscal legislations of the
contracting parties and, in turn, help the taxpayer avoid simultaneous taxations in
two different jurisdictions."18 CIR v. S.C. Johnson and Son, Inc. further clarifies that
"tax conventions are drafted with a view towards the elimination of international
juridical double taxation, which is defined as the imposition of comparable taxes in
two or more states on the same taxpayer in respect of the same subject matter and
for identical periods. The apparent rationale for doing away with double taxation is
to encourage the free flow of goods and services and the movement of capital,
technology and persons between countries, conditions deemed vital in creating
robust and dynamic economies. Foreign investments will only thrive in a fairly
predictable and reasonable international investment climate and the protection
297
against double taxation is crucial in creating such a climate."19 Simply put, tax
treaties are entered into to minimize, if not eliminate the harshness of
international juridical double taxation, which is why they are also known as double
tax treaty or double tax agreements.
"A state that has contracted valid international obligations is bound to make in its
legislations those modifications that may be necessary to ensure the fulfillment of
the obligations undertaken."20 Thus, laws and issuances must ensure that the
reliefs granted under tax treaties are accorded to the parties entitled thereto. The
BIR must not impose additional requirements that would negate the availment of
the reliefs provided for under international agreements. More so, when the RP-
Germany Tax Treaty does not provide for any pre-requisite for the availment of the
benefits under said agreement.
Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which would
indicate a deprivation of entitlement to a tax treaty relief for failure to comply with
the 15-day period. We recognize the clear intention of the BIR in implementing
RMO No. 1-2000, but the CTA’s outright denial of a tax treaty relief for failure to
strictly comply with the prescribed period is not in harmony with the objectives of
the contracting state to ensure that the benefits granted under tax treaties are
enjoyed by duly entitled persons or corporations.
Bearing in mind the rationale of tax treaties, the period of application for the
availment of tax treaty relief as required by RMO No. 1-2000 should not operate to
divest entitlement to the relief as it would constitute a violation of the duty
required by good faith in complying with a tax treaty. The denial of the availment
of tax relief for the failure of a taxpayer to apply within the prescribed period under
the administrative issuance would impair the value of the tax treaty. At most, the
application for a tax treaty relief from the BIR should merely operate to confirm the
entitlement of the taxpayer to the relief.
The obligation to comply with a tax treaty must take precedence over the objective
of RMO No. 1-2000.1âwphi1 Logically, noncompliance with tax treaties has
negative implications on international relations, and unduly discourages foreign
investors. While the consequences sought to be prevented by RMO No. 1-2000
involve an administrative procedure, these may be remedied through other system
management processes, e.g., the imposition of a fine or penalty. But we cannot
totally deprive those who are entitled to the benefit of a treaty for failure to strictly
comply with an administrative issuance requiring prior application for tax treaty
relief.

Prior Application vs. Claim for Refund
Again, RMO No. 1-2000 was implemented to obviate any erroneous interpretation
and/or application of the treaty provisions. The objective of the BIR is to forestall
assessments against corporations who erroneously availed themselves of the
benefits of the tax treaty but are not legally entitled thereto, as well as to save such
investors from the tedious process of claims for a refund due to an inaccurate
application of the tax treaty provisions. However, as earlier discussed,
noncompliance with the 15-day period for prior application should not operate to
automatically divest entitlement to the tax treaty relief especially in claims for
refund.
The underlying principle of prior application with the BIR becomes moot in refund
cases, such as the present case, where the very basis of the claim is erroneous or
there is excessive payment arising from non-availment of a tax treaty relief at the
first instance. In this case, petitioner should not be faulted for not complying with
RMO No. 1-2000 prior to the transaction. It could not have applied for a tax treaty
relief within the period prescribed, or 15 days prior to the payment of its BPRT,
precisely because it erroneously paid the BPRT not on the basis of the preferential
tax rate under
the RP-Germany Tax Treaty, but on the regular rate as prescribed by the NIRC.
Hence, the prior application requirement becomes illogical. Therefore, the fact that
petitioner invoked the provisions of the RP-Germany Tax Treaty when it requested
for a confirmation from the ITAD before filing an administrative claim for a refund
should be deemed substantial compliance with RMO No. 1-2000.
Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy for tax
recovery when there has been an erroneous payment of tax.1âwphi1 The outright
denial of petitioner’s claim for a refund, on the sole ground of failure to apply for a
tax treaty relief prior to the payment of the BPRT, would defeat the purpose of
Section 229.
Petitioner is entitled to a refund
It is significant to emphasize that petitioner applied – though belatedly – for a tax
treaty relief, in substantial compliance with RMO No. 1-2000. A ruling by the BIR
would have confirmed whether petitioner was entitled to the lower rate of 10%
BPRT pursuant to the RP-Germany Tax Treaty.
298
Nevertheless, even without the BIR ruling, the CTA Second Division found as
follows:
Based on the evidence presented, both documentary and testimonial, petitioner
was able to establish the following facts:
a. That petitioner is a branch office in the Philippines of Deutsche Bank AG, a
corporation organized and existing under the laws of the Federal Republic of
Germany;
b. That on October 21, 2003, it filed its Monthly Remittance Return of Final Income
Taxes Withheld under BIR Form No. 1601-F and remitted the amount of
₱67,688,553.51 as branch profits remittance tax with the BIR; and
c. That on October 29, 2003, the Bangko Sentral ng Pilipinas having issued a
clearance, petitioner remitted to Frankfurt Head Office the amount of
EUR5,174,847.38 (or ₱330,175,961.88 at 63.804 Peso/Euro) representing its 2002
profits remittance.22
The amount of PHP 67,688,553.51 paid by petitioner represented the 15% BPRT on
its RBU net income, due for remittance to DB Germany amounting to PHP
451,257,023.29 for 2002 and prior taxable years.23
Likewise, both the administrative and the judicial actions were filed within the two-
year prescriptive period pursuant to Section 229 of the NIRC.24
Clearly, there is no reason to deprive petitioner of the benefit of a preferential tax
rate of 10% BPRT in accordance with the RP-Germany Tax Treaty.
Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU net
income amounting to PHP 451,257,023.29 for 2002 and prior taxable years,
applying the 10% BPRT. Thus, it is proper to grant petitioner a refund ofthe
difference between the PHP 67,688,553.51 (15% BPRT) and PHP 45,125,702.34
(10% BPRT) or a total of PHP 22,562,851.17.
WHEREFORE, premises considered, the instant Petition is GRANTED. Accordingly,
the Court of Tax Appeals En Banc Decision dated 29 May 2009 and Resolution
dated 1 July 2009 are REVERSED and SET ASIDE. A new one is hereby entered
ordering respondent Commissioner of Internal Revenue to refund or issue a tax
credit certificate in favor of petitioner Deutsche Bank AG Manila Branch the

amount of TWENTY TWO MILLION FIVE HUNDRED SIXTY TWO THOUSAND EIGHT
HUNDRED FIFTY ONE PESOS AND SEVENTEEN CENTAVOS (PHP 22,562,851.17),
Philippine currency, representing the erroneously paid BPRT for 2002 and prior
taxable years.
SO ORDERED.
Taxation; Treaties prevail over administrative issuances. A state that has contracted
valid international obligations is bound to make in its legislations those
modifications that may be necessary to ensure the fulfillment of the obligations
undertaken.” Thus, laws and issuances must ensure that the reliefs granted under
tax treaties are accorded to the parties entitled thereto. The BIR must not impose
additional requirements that would negate the availment of the reliefs provided for
under international agreements. More so, when the RP-Germany Tax Treaty does
not provide for any pre-requisite for the availment of the benefits under said
agreement.
Application for tax treaty relief merely confirms entitlement to the relief. [T]he
period of application for the availment of tax treaty relief as required by RMO No.
1-2000 should not operate to divest entitlement to the relief as it would constitute
a violation of the duty required by good faith in complying with a tax treaty. The
denial of the availment of tax relief for the failure of a taxpayer to apply within the
prescribed period under the administrative issuance would impair the value of the
tax treaty. At most, the application for a tax treaty relief from the BIR should
merely operate to confirm the entitlement of the taxpayer to the relief.
Facts:
Pursuant to the National Internal Revenue Code of 1997, on October 21, 2003, the
petitioner remitted to the respondent the amount of Php 67,688,553.51,
representing fifteen (15) percent of the branch profit remittance tax (BPRT) on its
regular banking unit (RBU) net income remitted to the Deutsche Bank of Germany
(DB Germany) for 2002 and prior taxable years.
Believing that they made an overpayment of the BPRT, on October 4, 2005, the
petitioner filed with the BIR Large Taxpayers Assessment and Investigation Division
an administrative claim for refund or a tax credit certificate representing the
alleged excess BPRT paid (amount of Php 22,562,851.17). The petitioners also
299
requested from the International Tax Affairs Division (ITAD) for a confirmation of its
entitlement to a preferential tax rate of 10% under the RP-Germany Tax Treaty.
Because of the alleged inaction of the BIR on the administrative claim, on October
18, 2005, the petitioner filed a petition for review with the Court of Tax Appeals
(CTA), reiterating its claim for refund or tax credit certificate representing the
alleged excess BPRT paid. The claim was denied on the ground that application for
tax treaty relief was not filed with ITAD prior to the payment of BPRT, thereby
violating the fifteen-day period mandated under Section III, paragraph 2 of the
Revenue Memorandum Order No. 1-2000. Also, the CTA Second Division relied on
an en banc decision of the CTA that before the benefits of a tax treaty may be
extended to a foreign corporation, the latter should first invoke the provisions of
the tax treaty and prove that they indeed apply to the corporation (Mirant
Operations Corporation v Commissioner of Internal Revenue).
Hence this petition.
Issue: Whether or not the failure to strictly comply with the provisions of RMO No.
1-2000 will deprive persons or corporations the benefit of a tax treaty.
Ruling:
No. The constitution provides for the adherence to the general principles of
international law as part of the law of the land (Article II, Section 2).Every treaty is
binding upon the parties, and obligations must be performed (Article 26, Vienna
Convention on the Law on Treaties). There is nothing in RMO 1-2000 indicating a
deprivation of entitlement to a tax treaty for failure to comply with the fifteen-day
period. The denial of availment of tax relief for the failure to apply within the
prescribed period (under the administrative issuance) would impair the value of
the tax treaty. Also, the obligation to comply with the tax treaty must take
precedence over the objective of RMO 1-2000 because the non-compliance with
tax treaties would have negative implications on international affairs and would
discourage foreign investments.
Dispositive: The petition was granted, the CTA en banc decision was set aside and
reversed.The respondent was ordered to refund or issue a tax credit certificate (the
amount of Php 22,562,851.17) in favor of the petitioner.

EN BANC
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of
their minor children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG
and MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs , and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a
developed country, leaving our people beleaguered in a state of hunger, illiteracy
and unemployment. While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social services remains to
be a problem that concerns not only the poor, but every member of society. The
government continues to tread on a trying path to the realization of its very
purpose, that is, the general welfare of the Filipino people and the development of
the country as a whole. The legislative branch, as the main facet of a representative
government, endeavors to enact laws and policies that aim to remedy looming
societal woes, while the executive is closed set to fully implement these measures
and bring concrete and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as an inert
governmental body that merely casts its watchful eyes on clashing stakeholders
until it is called upon to adjudicate. Passive, yet reflexive when called into action,
the Judiciary then willingly embarks on its solemn duty to interpret legislation vis-a-
300
vis the most vital and enduring principle that holds Philippine society together - the
supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population
growth control, abortion and contraception. As in every democratic society,
diametrically opposed views on the subjects and their perceived consequences
freely circulate in various media. From television debates2 to sticker
campaigns,3 from rallies by socio-political activists to mass gatherings organized by
members of the clergy4 - the clash between the seemingly antithetical ideologies of
the religious conservatives and progressive liberals has caused a deep division in
every level of the society. Despite calls to withhold support thereto, however,
Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood
and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on
December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from
various sectors of society came knocking on the doors of the Court, beckoning it to
wield the sword that strikes down constitutional disobedience. Aware of the
profound and lasting impact that its decision may produce, the Court now faces the
iuris controversy, as presented in fourteen (14) petitions and two (2) petitions- in-
intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James
M. Imbong and Lovely Ann C. Imbong, in their personal capacities as
citizens, lawyers and taxpayers and on behalf of their minor children; and
the Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family
Foundation Philippines, Inc., through its president, Atty. Maria
Concepcion S. Noche7 and several others8 in their personal capacities as
citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life
Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens and
taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned

educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and
the Catholic Xybrspace Apostolate of the Philippines,16 in their capacities
as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance
of Xseminarians Inc.,18 and several others19 in their capacities as citizens
and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in
their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as
citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia
is also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23
filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar
(Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation,
Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and
Berteni Catalufia Causing, in their capacities as citizens, taxpayers and
members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat
and several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31in their capacities as citizens (CFC);
301
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and
Abdulhussein M. Kashim in their capacities as citizens and taxpayers
(Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B
UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables which are
abortives, in violation of Section 12, Article II of the Constitution which
guarantees protection of both the life of the mother and the life of the
unborn from conception.35
• The RH Law violates the right to health and the right to protection
against hazardous products. The petitioners posit that the RH Law
provides universal access to contraceptives which are hazardous to one's
health, as it causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners
contend that the RH Law violates the constitutional guarantee respecting
religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes
that are believed to be contrary to their beliefs is included in the
constitutional mandate ensuring religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal
prosecution, imprisonment and other forms of punishment, as it compels medical
practitioners 1] to refer patients who seek advice on reproductive health programs
to other doctors; and 2] to provide full and correct information on reproductive
health programs and service, although it is against their religious beliefs and
convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the
RH Law (RH-IRR),39 provides that skilled health professionals who are public officers
such as, but not limited to, Provincial, City, or Municipal Health Officers, medical
officers, medical specialists, rural health physicians, hospital staff nurses, public
health nurses, or rural health midwives, who are specifically charged with the duty
to implement these Rules, cannot be considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious
beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present danger
test" and the "compelling state interest test" to justify the regulation of the right to
free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary
servitude. According to the petitioners, the RH Law subjects medical
practitioners to involuntary servitude because, to be accredited under
the PhilHealth program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under threat of criminal
prosecution, imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth,
a medical practitioner would effectively be forced to render reproductive health
services since the lack of PhilHealth accreditation would mean that the majority of
the public would no longer be able to avail of the practitioners services.44
• The RH Law violates the right to equal protection of the law. It is
claimed that the RH Law discriminates against the poor as it makes them
the primary target of the government program that promotes
contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process
clause of the Constitution. In imposing the penalty of imprisonment
and/or fine for "any violation," it is vague because it does not define the
type of conduct to be treated as "violation" of the RH Law.46
302
In this connection, it is claimed that "Section 7 of the RH Law violates the right to
due process by removing from them (the people) the right to manage their own
affairs and to decide what kind of health facility they shall be and what kind of
services they shall offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance with their own
discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to
explain a full range of family planning methods is plainly to curtail his
right to expound only his own preferred way of family planning. The
petitioners note that although exemption is granted to institutions
owned and operated by religious groups, they are still forced to refer
their patients to another healthcare facility willing to perform the service
or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected
by the Constitution. It is contended that the RH Law providing for
mandatory reproductive health education intrudes upon their
constitutional right to raise their children in accordance with their
beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually decide on matters pertaining
to the overall well-being of their family. In the same breath, it is also claimed that
the parents of a child who has suffered a miscarriage are deprived of parental
authority to determine whether their child should use contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress
to the FDA of the power to determine whether a product is non-
abortifacient and to be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under
Section 26( 1 ), Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government
Units (LGUs) and the Autonomous Region of Muslim Mindanao {ARMM).

It is contended that the RH Law, providing for reproductive health
measures at the local government level and the ARMM, infringes upon
the powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law. Aside
from the Office of the Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the
Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4, 2013,
Senator Pia Juliana S. Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons that 1]
there is no actual case or controversy and, therefore, the issues are not yet ripe for
judicial determination.; 2] some petitioners lack standing to question the RH Law;
and 3] the petitions are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court
issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and twenty
(120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the
parties to determine and/or identify the pertinent issues raised by the parties and
the sequence by which these issues were to be discussed in the oral arguments. On
July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on
oral argument. On July 16, 2013, the SQAO was ordered extended until further
orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda
within sixty (60) days and, at the same time posed several questions for their
clarification on some contentions of the parties.64
303
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back as
June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late the
Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices."
Although contraceptive drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions
relative to "dispensing of abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided that "no drug or chemical
product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be considered as
the principal element for long-term economic development, enacted measures
that promoted male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved on August 16,
1971, entitled "An Act Establishing a National Policy on Population, Creating the
Commission on Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational program; safe and
effective means will be provided to couples desiring to space or limit family size;
mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued
Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others,
made "family planning a part of a broad educational program," provided "family
planning services as a part of over-all health care," and made "available all
acceptable methods of contraception, except abortion, to all Filipino citizens
desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to one
centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely choose
the method of family planning to be adopted, in conformity with its adherence to
the commitments made in the International Conference on Population and
Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or
"The Magna Carta for Women, " which, among others, mandated the State to
provide for comprehensive health services and programs for women, including
family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on
galloping at an uncontrollable pace. From a paltry number of just over 27 million
Filipinos in 1960, the population of the country reached over 76 million in the year
2000 and over 92 million in 2010.72 The executive and the legislative, thus, felt that
the measures were still not adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure
that its objective to provide for the peoples' right to reproductive health be
achieved. To make it more effective, the RH Law made it mandatory for health
providers to provide information on the full range of modem family planning
methods, supplies and services, and for schools to provide reproductive health
education. To put teeth to it, the RH Law criminalizes certain acts of refusals to
carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make
effective the current laws on contraception, women's health and population
control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the
right to health of women and the sanctity of life, which the State is mandated to
protect and promote. Thus, ALFI prays that "the status quo ante - the situation
prior to the passage of the RH Law - must be maintained."73 It explains:
304
x x x. The instant Petition does not question contraception and contraceptives per
se. As provided under Republic Act No. 5921 and Republic Act No. 4729, the sale
and distribution of contraceptives are prohibited unless dispensed by a prescription
duly licensed by a physician. What the Petitioners find deplorable and repugnant
under the RH Law is the role that the State and its agencies - the entire
bureaucracy, from the cabinet secretaries down to the barangay officials in the
remotest areas of the country - is made to play in the implementation of the
contraception program to the fullest extent possible using taxpayers' money. The
State then will be the funder and provider of all forms of family planning methods
and the implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court
has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over
the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health

3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules,
it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review
over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it
should submit to the legislative and political wisdom of Congress and respect the
compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"75 and "characterized by an inordinate amount of
transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the
discretion to implement the constitutional policies and positive norms with the
political departments, in particular, with Congress.77 It further asserts that in view
of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the
remedies of certiorari and prohibition utilized by the petitioners are improper to
assail the validity of the acts of the legislature.79
305
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on its
face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of
the Executive and the Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government,
which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested
in the Congress of the Philippines;82 (b) the executive power shall be vested in the
President of the Philippines;83 and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law.84 The
Constitution has truly blocked out with deft strokes and in bold lines, the allotment
of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution. 86
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated.87 In order to address this, the Constitution
impresses upon the Court to respect the acts performed by a co-equal branch done
within its sphere of competence and authority, but at the same time, allows it to
cross the line of separation - but only at a very limited and specific point - to
determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion.88 Thus, while the
Court may not pass upon questions of wisdom, justice or expediency of the RH
Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to
protect those cherished rights and principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review
may be limited, the Constitution makes no distinction as to the kind of legislation
that may be subject to judicial scrutiny, be it in the form of social legislation or
otherwise. The reason is simple and goes back to the earlier point. The Court may
pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to
make sure that they have acted in consonance with their respective authorities and
rights as mandated of them by the Constitution. If after said review, the Court finds
no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review.90 This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal
v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others.
In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. "The question thus posed is judicial rather than political. The
duty (to adjudicate) remains to assure that the supremacy of the Constitution is
upheld. " Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by constitutional mandate to
decide. [Emphasis supplied]
306
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,
"judicial review is essential for the maintenance and enforcement of the separation
of powers and the balancing of powers among the three great departments of
government through the definition and maintenance of the boundaries of authority
and control between them. To him, judicial review is the chief, indeed the only,
medium of participation - or instrument of intervention - of the judiciary in that
balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited by
four exacting requisites, viz : (a) there must be an actual case or controversy; (b)
the petitioners must possess locus standi; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any
actual case or controversy because the RH Law has yet to be implemented.97 They
claim that the questions raised by the petitions are not yet concrete and ripe for
adjudication since no one has been charged with violating any of its provisions and
that there is no showing that any of the petitioners' rights has been adversely
affected by its operation.98 In short, it is contended that judicial review of the RH
Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that courts
do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable-definite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof, on the other; that is, it must concern a
real, tangible and not merely a theoretical question or issue. There ought to be an
actual and substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of
ripeness.101 A question is ripe for adjudication when the act being challenged has

had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show that
he has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued
that the Court has no authority to pass upon the issues raised as there was yet no
concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act
in question being not yet effective does not negate ripeness. Concrete acts under a
law are not necessary to render the controversy ripe. Even a singular violation of
the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and
that the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect and that budgetary measures to carry
out the law have already been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is not
a speech regulating measure.105
The Court is not persuaded.
307
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the
right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the right
to one's freedom of expression, as they are modes which one's thoughts are
externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly penal statues,108 it has
expanded its scope to cover statutes not only regulating free speech, but also those
involving religious freedom, and other fundamental rights.109 The underlying
reason for this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, is mandated by the Fundamental Law not
only to settle actual controversies involving rights which are legally demandable
and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain
the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental
rights mentioned above have been violated by the assailed legislation, the Court
has authority to take cognizance of these kindred petitions and to determine if the
RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law
has been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the "as applied challenge" lodged by the petitioners
cannot prosper as the assailed law has yet to be enforced and applied against
them,111 and the government has yet to distribute reproductive health devices that
are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance"
doctrine and their status as citizens and taxpayers in establishing the requisite
locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a
case such that the party has sustained or will sustain direct injury as a result of the
challenged governmental act.113 It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of his
own rights. The rule prohibits one from challenging the constitutionality of the
statute grounded on a violation of the rights of third persons not before the court.
This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the
standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases,118 ordinary citizens and taxpayers were allowed
to question the constitutionality of several executive orders although they had only
an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted liberally
on the locus s tandi requirement. It has accorded certain individuals standing to
sue, not otherwise directly injured or with material interest affected by a
Government act, provided a constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural technicality which the
Court has, on more than one occasion, waived or relaxed, thus allowing non-
308
traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to
sue in the public interest, albeit they may not have been directly injured by the
operation of a law or any other government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition
for prohibition, the transcendental importance of the issues involved in this case
warrants that we set aside the technical defects and take primary jurisdiction over
the petition at bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial justice, must
always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the constitutional provisions
on the right to life and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a
broad spectrum of society, the Court entertains no doubt that the petitions raise
issues of transcendental importance warranting immediate court adjudication.
More importantly, considering that it is the right to life of the mother and the
unborn which is primarily at issue, the Court need not wait for a life to be taken
away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do so,
when the life of either the mother or her child is at stake, would lead to irreparable
consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction. 120 Suffice it to
state that most of the petitions are praying for injunctive reliefs and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it
has original jurisdiction. Where the case has far-reaching implications and prays for

injunctive reliefs, the Court may consider them as petitions for prohibition under
Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26(1 ), Article VI of the Constitution,122 prescribing the one subject-
one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population
control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure,124 and that the concepts of "responsible parenthood"
and "reproductive health" are both interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it
as principally a population control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it claims to save lives and
keep our women and children healthy, it also promotes pregnancy-preventing
products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning
methods, natural or modem, however, are clearly geared towards the prevention
of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the
number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal
care as well. A large portion of the law, however, covers the dissemination of
information and provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services, methods,
devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law.126 Indeed, remove the provisions that refer to contraception or are related to
it and the RH Law loses its very foundation.127 As earlier explained, "the other
positive provisions such as skilled birth attendance, maternal care including pre-
309
and post-natal services, prevention and management of reproductive tract
infections including HIV/AIDS are already provided for in the Magna Carta for
Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G
Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress
to employ in the title of the enactment language of such precision as to mirror,
fully index or catalogue all the contents and the minute details therein. The rule is
sufficiently complied with if the title is comprehensive enough as to include the
general object which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of the proposed
law and its operation. Moreover, this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not to cripple or impede legislation."
[Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane
to the overriding objective to control the population growth. As expressed in the
first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of these
rights, the right to sustainable human development, the right to health which
includes reproductive health, the right to education and information, and the right
to choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must
not be "so uncertain that the average person reading it would not be informed of
the purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to

believe that Congress intentionally sought to deceive the public as to the contents
of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of
the unborn child under Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section
4(a) of the RH Law considers contraceptives that prevent the fertilized ovum to
reach and be implanted in the mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient"
hormonal contraceptives, intrauterine devices, injectables and other safe, legal,
non-abortifacient and effective family planning products and supplies, medical
research shows that contraceptives use results in abortion as they operate to kill
the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes natural
law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and
Drug Administration (FDA) to certify that the product or supply is not to be used as
an abortifacient, the assailed legislation effectively confirms that abortifacients are
not prohibited. Also considering that the FDA is not the agency that will actually
supervise or administer the use of these products and supplies to prospective
patients, there is no way it can truthfully make a certification that it shall not be
used for abortifacient purposes.133
Position of the Respondents
310
For their part, the defenders of the RH Law point out that the intent of the Framers
of the Constitution was simply the prohibition of abortion. They contend that the
RH Law does not violate the Constitution since the said law emphasizes that only
"non-abortifacient" reproductive health care services, methods, devices products
and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law was
enacted with due consideration to various studies and consultations with the
World Health Organization (WHO) and other experts in the medical field, it is
asserted that the Court afford deference and respect to such a determination and
pass judgment only when a particular drug or device is later on determined as an
abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's
right to life is not violated considering that various studies of the WHO show that
life begins from the implantation of the fertilized ovum. Consequently, he argues
that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are
allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law,
custom, or belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1,
Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled
"An Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive
Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and

devices which prevent fertilization,138 to the promotion of male vasectomy and
tubal ligation,139 and the ratification of numerous international agreements, the
country has long recognized the need to promote population control through the
use of contraceptives in order to achieve long-term economic development.
Through the years, however, the use of contraceptives and other family planning
methods evolved from being a component of demographic management, to one
centered on the promotion of public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's rights
and health and the overall promotion of the family's well-being. Thus, aside from
R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No.
9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program
has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles
are not merely grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when
life begins is a scientific and medical issue that should not be decided, at this stage,
without proper hearing and evidence. During the deliberation, however, it was
agreed upon that the individual members of the Court could express their own
views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government.
311
Textually, the Constitution affords protection to the unborn from conception. This
is undisputable because before conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to any proscription prior to
conception or when life begins. The problem has arisen because, amazingly, there
are quarters who have conveniently disregarded the scientific fact that conception
is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous
with "fertilization" of the female ovum by the male sperm.142 On the other side of
the spectrum are those who assert that conception refers to the "implantation" of
the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be
interpreted in their plain and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical terms
are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean
what they say. Verba legis non est recedendum - from the words of a statute there
should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed
that the words in which constitutional provisions are couched express the objective
sought to be attained; and second, because the Constitution is not primarily a
lawyer's document but essentially that of the people, in whose consciousness it
should ever be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable sources,
means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming
pregnant, formation of a viable zygote; the fertilization that results in a new entity
capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human life
capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality
first before he/she could die. Even a child inside the womb already has life. No less
than the Constitution recognizes the life of the unborn from conception, that the
State must protect equally with the life of the mother. If the unborn already has
life, then the cessation thereof even prior to the child being delivered, qualifies as
death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme
Court, said that the State "has respect for human life at all stages in the pregnancy"
and "a legitimate and substantial interest in preserving and promoting fetal life."
Invariably, in the decision, the fetus was referred to, or cited, as a baby or a
child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception."
When is the moment of conception?
312
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
As to why conception is reckoned from fertilization and, as such, the beginning of
human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question
that needs to be answered is: Is the fertilized ovum alive? Biologically categorically
says yes, the fertilized ovum is alive. First of all, like all living organisms, it takes in
nutrients which it processes by itself. It begins doing this upon fertilization.
Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies
itself at a geometric rate in the continuous process of cell division. All these
processes are vital signs of life. Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At
the moment of conception, the nuclei of the ovum and the sperm rupture. As this
happens 23 chromosomes from the ovum combine with 23 chromosomes of the
sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only
- and I repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if
the fertilized ovum is both alive and human, then, as night follows day, it must be
human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life
begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by
us here before with the scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler phrase "from the
moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under
the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of
writing a Constitution, without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life
begins. So, Congress can define life to begin from six months after fertilization; and
that would really be very, very, dangerous. It is now determined by science that life
begins from the moment of conception. There can be no doubt about it. So we
should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed right
now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg
meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the rooting of
the ovum in the uterus. If fertilization has already occurred, the next process is for
the fertilized ovum to travel towards the uterus and to take root. What happens
with some contraceptives is that they stop the opportunity for the fertilized ovum
to reach the uterus. Therefore, if we take the provision as it is proposed, these so
called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state
whether or not these certain contraceptives are abortifacient. Scientifically and
based on the provision as it is now proposed, they are already considered
abortifacient.154
313
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both the
mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to
ban all contraceptives for being unconstitutional. In fact, Commissioner Bernardo
Villegas, spearheading the need to have a constitutional provision on the right to
life, recognized that the determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to the courts to decide on
based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum
should be deemed an abortive and thus prohibited. Conversely, contraceptives that
actually prevent the union of the male sperm and the female ovum, and those that
similarly take action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
As emphasized by the Framers of the Constitution:
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to
the point that I would like not only to protect the life of the unborn, but also the
lives of the millions of people in the world by fighting for a nuclear-free world. I
would just like to be assured of the legal and pragmatic implications of the term
"protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation of
Commissioner Regalado. I would like to ask that question again for a categorical
answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this point in time. Is that the
sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg which
has already been fertilized from taking route to the uterus. So if we say "from the
moment of conception," what really occurs is that some of these contraceptives
will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even
admitted by petitioners during the oral arguments. There it was conceded that
tubal ligation, vasectomy, even condoms are not classified as abortifacients.157
Atty. Noche: Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin: There is no life.
Atty. Noche: So, there is no life to be protected.
Justice Bersamin: To be protected.
Atty. Noche: Under Section 12, yes.
Justice Bersamin: So you have no objection to condoms?
Atty. Noche: Not under Section 12, Article II.
Justice Bersamin: Even if there is already information that condoms sometimes
have porosity?
Atty. Noche: Well, yes, Your Honor, there are scientific findings to that effect, Your
Honor, but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin: Alright.
Atty. Noche: And it's not, I have to admit it's not an abortifacient, Your Honor.158
314
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s
Medical, Nursing, and Allied Health Dictionary defines conception as "the beginning
of pregnancy usually taken to be the instant a spermatozoon enters an ovum and
forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote
from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by
medical schools in the Philippines, also concludes that human life (human person)
begins at the moment of fertilization with the union of the egg and the sperm
resulting in the formation of a new individual, with a unique genetic composition
that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ cells
during a process known as fertilization (conception). Fertilization is a sequence of
events that begins with the contact of a sperm (spermatozoon) with a secondary
oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the
sperm and ovum) and the mingling of their chromosomes to form a new cell. This
fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or
primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They
wrote: "Although life is a continuous process, fertilization is a critical landmark
because, under ordinary circumstances, a new, genetically distinct human organism
is thereby formed.... The combination of 23 chromosomes present in each
pronucleus results in 46 chromosomes in the zygote. Thus the diploid number is
restored and the embryonic genome is formed. The embryo now exists as a genetic
unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and therein
concluded that:
 315

CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA
maintains its strong position that fertilization is sacred because it is at this stage
that conception, and thus human life, begins. Human lives are sacred from the
moment of conception, and that destroying those new lives is never licit, no matter
what the purported good outcome would be. In terms of biology and human
embryology, a human being begins immediately at fertilization and after that, there
is no point along the continuous line of human embryogenesis where only a
"potential" human being can be posited. Any philosophical, legal, or political
conclusion cannot escape this objective scientific fact.
To adopt it would constitute textual infidelity not only to the RH Law but also to the
Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of
any drug or device that would prevent the implantation of the fetus at the uterine
wall. It would be provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.

The scientific evidence supports the conclusion that a zygote is a human organism
The RH Law and Abortion
and that the life of a new human being commences at a scientifically well defined
"moment of conception." This conclusion is objective, consistent with the factual
evidence, and independent of any specific ethical, moral, political, or religious view The clear and unequivocal intent of the Framers of the 1987 Constitution in
of human life or of human embryos.164 protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the record
Conclusion: The Moment of Conception is Reckoned from
of the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo
Fertilization
Villegas, the principal proponent of the protection of the unborn from conception,
explained:
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
The intention .. .is to make sure that there would be no pro-abortion laws ever
Constitution, the undeniable conclusion is that a zygote is a human organism and
passed by Congress or any pro-abortion decision passed by the Supreme Court.169
that the life of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at
For the above reasons, the Court cannot subscribe to the theory advocated by Hon.
this stage, when life begins, it finds that the RH Law itself clearly mandates that
Lagman that life begins at implantation.165 According to him, "fertilization and
protection be afforded from the moment of fertilization. As pointed out by Justice
conception are two distinct and successive stages in the reproductive process. They
Carpio, the RH Law is replete with provisions that embody the policy of the law to
are not identical and synonymous."166 Citing a letter of the WHO, he wrote that
protect to the fertilized ovum and that it should be afforded safe travel to the
"medical authorities confirm that the implantation of the fertilized ovum is the
uterus for implantation.170
commencement of conception and it is only after implantation that pregnancy can
be medically detected."167
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized
This theory of implantation as the beginning of life is devoid of any legal or
ovum. Thus:
scientific mooring. It does not pertain to the beginning of life but to the viability of
the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living
human being complete with DNA and 46 chromosomes.168 Implantation has been Section 4. Definition of Terms. - For the purpose of this Act, the following terms
conceptualized only for convenience by those who had population control in mind. shall be defined as follows:

(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and well-
being by addressing reproductive health-related problems. It also includes sexual
health, the purpose of which is the enhancement of life and personal relations. The
elements of reproductive health care include the following:
(3) Proscription of abortion and management of abortion complications;
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number, spacing
and timing of their children; to make other decisions concerning reproduction, free
of discrimination, coercion and violence; to have the information and means to do
so; and to attain the highest standard of sexual health and reproductive health:
Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
FDA.
As stated above, the RH Law mandates that protection must be afforded from the
moment of fertilization. By using the word " or," the RH Law prohibits not only
drugs or devices that prevent implantation, but also those that induce abortion and
316
those that induce the destruction of a fetus inside the mother's womb. Thus, an
abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the
mother's womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that induces
abortion (first kind), which, as discussed exhaustively above, refers to that which
induces the killing or the destruction of the fertilized ovum, and, second, prohibits
any drug or device the fertilized ovum to reach and be implanted in the mother's
womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to
reach and be implanted in the mother's womb is an abortifacient (third kind), the
RH Law does not intend to mean at all that life only begins only at implantation, as
Hon. Lagman suggests. It also does not declare either that protection will only be
given upon implantation, as the petitioners likewise suggest. Rather, it recognizes
that: one, there is a need to protect the fertilized ovum which already has life, and
two, the fertilized ovum must be protected the moment it becomes existent - all
the way until it reaches and implants in the mother's womb. After all, if life is only
recognized and afforded protection from the moment the fertilized ovum implants
- there is nothing to prevent any drug or device from killing or destroying the
fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the Court's
position that life begins at fertilization, not at implantation. When a fertilized ovum
is implanted in the uterine wall , its viability is sustained but that instance of
implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or
destroys the fertilized ovum or prevents the fertilized ovum to reach and be
implanted in the mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law
that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as empty as it is absurd. The
FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance
when the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section 9,
as worded, should bend to the legislative intent and mean that "any product or
supply included or to be included in the EDL must have a certification from the FDA
that said product and supply is made available on the condition that it cannot be
used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any
means emergency contraceptive pills, postcoital pills, abortifacients that will be
used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely
abused their office when they redefined the meaning of abortifacient. The RH Law
defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall
be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
317
a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
family planning method, device, or health product, whether natural or artificial,
that prevents pregnancy but does not primarily destroy a fertilized ovum or
prevent a fertilized ovum from being implanted in the mother's womb in doses of
its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes
as "abortifacient" only those that primarily induce abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well
taken. As they pointed out, with the insertion of the word "primarily," Section
3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the
RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the insertion of the qualifier
"primarily" will pave the way for the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an "abortifacient" if its
sole known effect is abortion or, as pertinent here, the prevention of the
implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval
of contraceptives which are actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an

abortifacient under Section 4 (a) of the RH Law and its declared policy against
abortion, the undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb, but also those that do not have the secondary action of acting the
same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line
with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in
Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity
of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that
have the primary effect of being an abortive would effectively "open the floodgates
to the approval of contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of the
Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in
the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices, injectables
and family products and supplies in the National Drug Formulary and the inclusion
of the same in the regular purchase of essential medicines and supplies of all
national hospitals.176Citing various studies on the matter, the petitioners posit that
the risk of developing breast and cervical cancer is greatly increased in women who
use oral contraceptives as compared to women who never use them. They point
out that the risk is decreased when the use of contraceptives is discontinued.
Further, it is contended that the use of combined oral contraceptive pills is
associated with a threefold increased risk of venous thromboembolism, a twofold
increased risk of ischematic stroke, and an indeterminate effect on risk of
myocardial infarction.177 Given the definition of "reproductive health" and "sexual
health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that
the assailed legislation only seeks to ensure that women have pleasurable and
satisfying sex lives.180
318
The OSG, however, points out that Section 15, Article II of the Constitution is not
self-executory, it being a mere statement of the administration's principle and
policy. Even if it were self-executory, the OSG posits that medical authorities refute
the claim that contraceptive pose a danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard,
the Constitution is replete with provisions protecting and promoting the right to
health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for
the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development, and
research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing.
Unless the provisions clearly express the contrary, the provisions of the
Constitution should be considered self-executory. There is no need for legislation
to implement these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it
was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing. . . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do
not question contraception and contraceptives per se.184 In fact, ALFI prays that the
status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of
contraceptives are not prohibited when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact
the provisions of R.A. No. 4729. There is no intention at all to do away with it. It is
still a good law and its requirements are still in to be complied with. Thus, the Court
agrees with the observation of respondent Lagman that the effectivity of the RH
Law will not lead to the unmitigated proliferation of contraceptives since the sale,
distribution and dispensation of contraceptive drugs and devices will still require
the prescription of a licensed physician. With R.A. No. 4729 in place, there exists
adequate safeguards to ensure the public that only contraceptives that are safe are
made available to the public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be dispensed and used without prescription
319
108. As an added protection to voluntary users of contraceptives, the same cannot
be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or
Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An
Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical
Education in the Philippines and for Other Purposes" are not repealed by the RH
Law and the provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs
and devices are particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell,
dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion
which is used exclusively for the purpose of preventing fertilization of the
female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose
of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act
shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other
relevant statutes, the pretension of the petitioners that the RH Law will lead to the
unmitigated proliferation of contraceptives, whether harmful or not, is completely
unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH
Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall
procure, distribute to LGUs and monitor the usage of family planning supplies for
the whole country. The DOH shall coordinate with all appropriate local government
bodies to plan and implement this procurement and distribution program. The
supply and budget allotments shall be based on, among others, the current levels
and projections of the following:
(a) Number of women of reproductive age and couples who want to
space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must
consider the provisions of R.A. No. 4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive
drugs and devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices must not be
320
indiscriminately done. The public health must be protected by all possible means.
As pointed out by Justice De Castro, a heavy responsibility and burden are assumed
by the government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to their
use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the FDA as safe, it being the
agency tasked to ensure that food and medicines available to the public are safe
for public consumption. Consequently, the Court finds that, at this point, the attack
on the RH Law on this ground is premature. Indeed, the various kinds of
contraceptives must first be measured up to the constitutional yardstick as
expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-abortifacient.
The first sentence of Section 9 that ordains their inclusion by the National Drug
Formulary in the EDL by using the mandatory "shall" is to be construed as operative
only after they have been tested, evaluated, and approved by the FDA. The FDA,
not Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of
the third sentence concerning the requirements for the inclusion or removal of a
particular family planning supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination
by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress
that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.
3 -Freedom of Religion and the Right to Free Speech
Position of the Petitioners:
1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives, whether
abortifacient or not, are evil. Some of these are medical practitioners who
essentially claim that their beliefs prohibit not only the use of contraceptives but
also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed
to marital chastity, it is contrary to the good of the transmission of life, and to the
reciprocal self-giving of the spouses; it harms true love and denies the sovereign
rule of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and the Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes
upon the conscientious objector the duty to refer the patient seeking reproductive
health services to another medical practitioner who would be able to provide for
the patient's needs. For the petitioners, this amounts to requiring the conscientious
objector to cooperate with the very thing he refuses to do without violating his/her
religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred
to in Section 7; b) public officers involved in the implementation of the law referred
to in Section 23(b ); and c) teachers in public schools referred to in Section 14 of
the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that
the requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They add
321
that compelling them to do the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they
tend to disregard the religion of Filipinos. Authorizing the use of contraceptives
with abortive effects, mandatory sex education, mandatory pro-bono reproductive
health services to indigents encroach upon the religious freedom of those upon
whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to
refer the person seeking reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to
the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to
justify regulation of religious freedom because it mentions no emergency, risk or
threat that endangers state interests. It does not explain how the rights of the
people (to equality, non-discrimination of rights, sustainable human development,
health, education, information, choice and to make decisions according to religious
convictions, ethics, cultural beliefs and the demands of responsible parenthood)
are being threatened or are not being met as to justify the impairment of religious
freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be
couples to attend family planning and responsible parenthood seminars and to
obtain a certificate of compliance. They claim that the provision forces individuals
to participate in the implementation of the RH Law even if it contravenes their
religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim
that the RH Law forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be struck down as it runs
afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide
that a specific mode or type of contraceptives be used, be it natural or artificial. It
neither imposes nor sanctions any religion or belief.196 They point out that the RH
Law only seeks to serve the public interest by providing accessible, effective and
quality reproductive health services to ensure maternal and child health, in line

with the State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices,
which deprive others of their right to reproductive health.198 They assert that the
assailed law only seeks to guarantee informed choice, which is an assurance that
no one will be compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning should be
allowed, the petitioners are effectively going against the constitutional right to
religious freedom, the same right they invoked to assail the constitutionality of the
RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on
the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that of the citizen who
needs access to information and who has the right to expect that the health care
professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient
accommodation to the right to freely exercise one's religion without unnecessarily
infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the
duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents
claim that it is a reasonable regulation providing an opportunity for would-be
couples to have access to information regarding parenthood, family planning,
breastfeeding and infant nutrition. It is argued that those who object to any
information received on account of their attendance in the required seminars are
not compelled to accept information given to them. They are completely free to
reject any information they do not agree with and retain the freedom to decide on
matters of family life without intervention of the State. 204
For their part, respondents De Venecia et al., dispute the notion that natural family
planning is the only method acceptable to Catholics and the Catholic hierarchy.
Citing various studies and surveys on the matter, they highlight the changing stand
of the Catholic Church on contraception throughout the years and note the general
322
acceptance of the benefits of contraceptives by its followers in planning their
families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is
made up of people of diverse ethnic, cultural and religious beliefs and backgrounds.
History has shown us that our government, in law and in practice, has allowed
these various religious, cultural, social and racial groups to thrive in a single society
together. It has embraced minority groups and is tolerant towards all - the religious
people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to
whom they call for guidance and enlightenment in crafting our fundamental law.
Thus, the preamble of the present Constitution 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.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by tradition
and historical experience. As this is embodied in the preamble, it means that the
State recognizes with respect the influence of religion in so far as it instills into the
mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain
benevolent and accommodating provisions towards religions such as tax exemption
of church property, salary of religious officers in government institutions, and
optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle of
separation of Church and State was, thus, enshrined in Article II, Section 6 of the
1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot favor
one religion and discriminate against another. On the other hand, the church
cannot impose its beliefs and convictions on the State and the rest of the citizenry.
It cannot demand that the nation follow its beliefs, even if it sincerely believes that
they are good for the country.
Consistent with the principle that not any one religion should ever be preferred
over another, the Constitution in the above-cited provision utilizes the term
"church" in its generic sense, which refers to a temple, a mosque, an iglesia, or any
other house of God which metaphorically symbolizes a religious organization. Thus,
the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and Article VI,
Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
Section 29.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
323
establishment of a state religion and the use of public resources for the support or
prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union 209 wrote:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion
by law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of
one's chosen form of religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. Any legislation whose effect
or purpose is to impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d
965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power,
a general law which has for its purpose and effect to advance the state's secular
goals, the statute is valid despite its indirect burden on religious observance, unless
the state can accomplish its purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S.
420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of individual
religious beliefs and practices. In simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the
two religion clauses were intended to deny government the power to use either
the carrot or the stick to influence individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe,

and the freedom to act on one's belief. The first part is absolute. As explained in
Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the
freedom of belief and the exercise of said belief, there is quite a stretch of road to
travel.212
The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is
"subject to regulation where the belief is translated into external acts that affect
the public welfare."213
Legislative Acts and the Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court
adheres to the doctrine of benevolent neutrality. This has been clearly decided by
the Court in Estrada v. Escritor, (Escritor)214 where it was stated "that benevolent
neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution."215 In the same case, it was
further explained that"
The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the
government's favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. "The purpose of accommodation is to
remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a
declaration of unconstitutionality of a facially neutral law, but an exemption from
its application or its 'burdensome effect,' whether by the legislature or the
courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state
interest test is proper.218Underlying the compelling state interest test is the notion
that free exercise is a fundamental right and that laws burdening it should be
subject to strict scrutiny.219 In Escritor, it was written:
324
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of religious
freedom is whether it violates the established institutions of society and law. The
Victoriano case mentioned the "immediate and grave danger" test as well as the
doctrine that a law of general applicability may burden religious exercise provided
the law is the least restrictive means to accomplish the goal of the law. The case
also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed the
"grave and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the " clear and present danger" test in the
maiden case of A merican Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is often used in cases
on freedom of expression. On the other hand, the Gerona and German cases set
the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has
been overruled by Ebralinag which employed the "grave and immediate danger"
test . Victoriano was the only case that employed the "compelling state interest"
test, but as explained previously, the use of the test was inappropriate to the facts
of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and
Iglesia ni Cristo where the "clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily discernible or immediate
effects. The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The "compelling state interest" test is proper where conduct
is involved for the whole gamut of human conduct has different effects on the
state's interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail over the
right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all human
rights", in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order
of limited government is premised upon an acknowledgment of such higher
sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a
 325

just and humane society and establish a government." As held in Sherbert, only the themselves in accordance with their religious convictions, ethics, cultural beliefs,
gravest abuses, endangering paramount interests can limit this fundamental right. and the demands of responsible parenthood. [Section 2, Declaration of Policy]
A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the 2 . The State recognizes marriage as an inviolable social institution and the
state can prevail over the fundamental right to religious liberty. The test requires foundation of the family which in turn is the foundation of the nation. Pursuant
the state to carry a heavy burden, a compelling one, for to do otherwise would thereto, the State shall defend:
allow the state to batter religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state's interest and
(a) The right of spouses to found a family in accordance with their religious
religious liberty, reasonableness shall be the guide. The "compelling state interest"
convictions and the demands of responsible parenthood." [Section 2, Declaration
serves the purpose of revering religious liberty while at the same time affording
of Policy]
protection to the paramount interests of the state. This was the test used in
Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, 3. The State shall promote and provide information and access, without bias, to all
seeks to protect the very state, without which, religious liberty will not be methods of family planning, including effective natural and modern methods which
preserved. [Emphases in the original. Underlining supplied.] have been proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards such as
those registered and approved by the FDA for the poor and marginalized as
The Court's Position
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to
In the case at bench, it is not within the province of the Court to determine promote modern natural methods of family planning, especially the Billings
whether the use of contraceptives or one's participation in the support of modem Ovulation Method, consistent with the needs of acceptors and their religious
reproductive health measures is moral from a religious standpoint or whether the convictions. [Section 3(e), Declaration of Policy]
same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship,
4. The State shall promote programs that: (1) enable individuals and couples to
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical
have the number of children they desire with due consideration to the health,
matters which are outside the province of the civil courts."220 The jurisdiction of the
particularly of women, and the resources available and affordable to them and in
Court extends only to public and secular morality. Whatever pronouncement the
accordance with existing laws, public morals and their religious convictions.
Court makes in the case at bench should be understood only in this realm where it
[Section 3CDJ
has authority. Stated otherwise, while the Court stands without authority to rule
on ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom. 5. The State shall respect individuals' preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural beliefs,
taking into consideration the State's obligations under various human rights
At first blush, it appears that the RH Law recognizes and respects religion and
instruments. [Section 3(h)]
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are the 6. Active participation by nongovernment organizations (NGOs) , women's and
following: people's organizations, civil society, faith-based organizations, the religious sector
and communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of
1. The State recognizes and guarantees the human rights of all persons including
women, the poor, and the marginalized. [Section 3(i)]
their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the
right to education and information, and the right to choose and make decisions for

7. Responsible parenthood refers to the will and ability of a parent to respond to
the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.
The Establishment Clause and Contraceptives
In the same breath that the establishment clause restricts what the government
can do with religion, it also limits what religious sects can or cannot do with the
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to restrict
other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply because
the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the
State is not precluded to pursue its legitimate secular objectives without being
dictated upon by the policies of any one religion. One cannot refuse to pay his
taxes simply because it will cloud his conscience. The demarcation line between
Church and State demands that one render unto Caesar the things that are Caesar's
and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and
24 thereof. The said provisions commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health care and services under
the law to another accessible healthcare provider despite their conscientious
objections based on religious or ethical beliefs.
326
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than strict
scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates
the religious belief and conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his
beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at
the basis of the free exercise clause is the respect for the inviolability of the human
conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a
false compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They cannot,
in conscience, do indirectly what they cannot do directly. One may not be the
principal, but he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the
right to free speech, it being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind.223 While the RH Law

seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to provide
access and information on reproductive health products, services, procedures and
methods to enable the people to determine the timing, number and spacing of the
birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy.
Accordingly, a conscientious objector should be exempt from compliance with the
mandates of the RH Law. If he would be compelled to act contrary to his religious
belief and conviction, it would be violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health
Board,225 that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate,
supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according
to whether the person was taking part 'directly' or ' indirectly' this would actually
mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was
the same - they could not be forced to assist abortions if it would be against their
conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals
owned and operated by a religious group and health care service providers.
Considering that Section 24 of the RH Law penalizes such institutions should they
fail or refuse to comply with their duty to refer under Section 7 and Section
23(a)(3), the Court deems that it must be struck down for being violative of the
freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to
Section 24, considering that in the dissemination of information regarding
programs and services and in the performance of reproductive health procedures,
the religious freedom of health care service providers should be respected.
327
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to
ensure compliance. Without set consequences for either an active violation or
mere inaction, a law tends to be toothless and ineffectual. Nonetheless, when what
is bartered for an effective implementation of a law is a constitutionally-protected
right the Court firmly chooses to stamp its disapproval. The punishment of a
healthcare service provider, who fails and/or refuses to refer a patient to another,
or who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered
as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious belief
of public health officers. There is no perceptible distinction why they should not be
considered exempt from the mandates of the law. The protection accorded to
other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all,
the freedom to believe is intrinsic in every individual and the protective robe that
guarantees its free exercise is not taken off even if one acquires employment in the
government.

It should be stressed that intellectual liberty occupies a place inferior to none in the
hierarchy of human values. The mind must be free to think what it wills, whether in
the secular or religious sphere, to give expression to its beliefs by oral discourse or
through the media and, thus, seek other candid views in occasions or gatherings or
in more permanent aggrupation. Embraced in such concept then are freedom of
religion, freedom of speech, of the press, assembly and petition, and freedom of
association.229
The discriminatory provision is void not only because no such exception is stated in
the RH Law itself but also because it is violative of the equal protection clause in
the Constitution. Quoting respondent Lagman, if there is any conflict between the
RH-IRR and the RH Law, the law must prevail.
Justice Mendoza: I'll go to another point. The RH law .. .in your Comment- in-
Intervention on page 52, you mentioned RH Law is replete with provisions in
upholding the freedom of religion and respecting religious convictions. Earlier, you
affirmed this with qualifications. Now, you have read, I presumed you have read
the IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman: Yes, Your Honor, I have read but I have to admit, it's a long
IRR and I have not thoroughly dissected the nuances of the provisions.
Justice Mendoza: I will read to you one provision. It's Section 5.24. This I cannot
find in the RH Law. But in the IRR it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RPRH Act and these
Rules, cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman: I will have to go over again the provisions, Your Honor.
Justice Mendoza: In other words, public health officers in contrast to the private
practitioners who can be conscientious objectors, skilled health professionals
cannot be considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
Congressman Lagman: Your Honor, if there is any conflict between the IRR and the
law, the law must prevail.230
328
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in
defense of the subject provisions, were able to: 1] demonstrate a more compelling
state interest to restrain conscientious objectors in their choice of services to
render; and 2] discharge the burden of proof that the obligatory character of the
law is the least intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in
vain. The OSG was curiously silent in the establishment of a more compelling state
interest that would rationalize the curbing of a conscientious objector's right not to
adhere to an action contrary to his religious convictions. During the oral arguments,
the OSG maintained the same silence and evasion. The Transcripts of the
Stenographic Notes disclose the following:
Justice De Castro: Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay: Yes, Justice.
Justice De Castro: ... which you are discussing awhile ago with Justice Abad. What is
the compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay: Ahh, Your Honor, ..
Justice De Castro: What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay: In the first place, Your Honor, I don't believe that the
standard is a compelling State interest, this is an ordinary health legislation
involving professionals. This is not a free speech matter or a pure free exercise
matter. This is a regulation by the State of the relationship between medical
doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free
exercise clause of the conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government
fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232

Freedom of religion means more than just the freedom to believe. It also means
the freedom to act or not to act according to what one believes. And this freedom
is violated when one is compelled to act against one's belief or is prevented from
acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple
who plans the timing, number and spacing of the birth of their children refers to a
future event that is contingent on whether or not the mother decides to adopt or
use the information, product, method or supply given to her or whether she even
decides to become pregnant at all. On the other hand, the burden placed upon
those who object to contraceptive use is immediate and occurs the moment a
patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of
the conscientious objector's religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is the
very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the State
to achieve its objective without violating the rights of the conscientious objector.
The health concerns of women may still be addressed by other practitioners who
may perform reproductive health-related procedures with open willingness and
motivation. Suffice it to say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last vanguard of
constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure
that the right to health is protected. Considering other legislations as they stand
now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The Population Act
of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in relation to health services and
programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The
State shall, at all times, provide for a comprehensive, culture-sensitive, and gender-
329
responsive health services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and morbidity:
Provided, That in the provision for comprehensive health services, due respect shall
be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from hazardous
drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their
children;
(5) Prevention and management of reproductive tract infections, including sexually
transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to
ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate information
and education on all the above-stated aspects of women's health in government
education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth
and the development of moral character and the right of children to be brought up
in an atmosphere of morality and rectitude for the enrichment and strengthening
of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He, however, failed
to substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that
the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such revelation,
the proponents still insist that such number of maternal deaths constitute a
compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a measure
that puts an unwarrantable stranglehold on religious beliefs in exchange for blind
conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in
the law. While generally healthcare service providers cannot be forced to render
330
reproductive health care procedures if doing it would contravene their religious
beliefs, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In these situations, the right to life of the
mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing
the life of a mother in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we are objecting on
grounds of violation of freedom of religion does not contemplate an
emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the RH
Bill in the House of Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child is never justified to
bring about a "good" effect. In a conflict situation between the life of the child and
the life of the mother, the doctor is morally obliged always to try to save both lives.
However, he can act in favor of one (not necessarily the mother) when it is
medically impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child's life or the
mother's life is not intentional and, therefore, unavoidable. Hence, the doctor
would not be guilty of abortion or murder. The mother is never pitted against the
child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering
the life of the child may be resorted to even if is against the religious sentiments of
the medical practitioner. As quoted above, whatever burden imposed upon a
medical practitioner in this case would have been more than justified considering
the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance
of a marriage license, the Court finds the same to be a reasonable exercise of police
power by the government. A cursory reading of the assailed provision bares that
the religious freedom of the petitioners is not at all violated. All the law requires is
for would-be spouses to attend a seminar on parenthood, family planning
breastfeeding and infant nutrition. It does not even mandate the type of family

planning methods to be included in the seminar, whether they be natural or
artificial. As correctly noted by the OSG, those who receive any information during
their attendance in the required seminars are not compelled to accept the
information given to them, are completely free to reject the information they find
unacceptable, and retain the freedom to decide on matters of family life without
the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into marital privacy and autonomy. It
argues that it cultivates disunity and fosters animosity in the family rather than
promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the
basic social institution. In fact, one article, Article XV, is devoted entirely to the
family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood;
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;
331
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth,
contains provisions which tend to wreck the family as a solid social institution. It
bars the husband and/or the father from participating in the decision making
process regarding their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is already a parent or
had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on
any person of legal age on the ground of lack of consent or authorization of the
following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation
and vasectomy which, by their very nature, should require mutual consent and
decision between the husband and the wife as they affect issues intimately related
to the founding of a family. Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a family." One person cannot
found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By
giving absolute authority to the spouse who would undergo a procedure, and

barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the population. This would
be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would reach
would affect their future as a family because the size of the family or the number of
their children significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as one cohesive unit
as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the
State should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,
otherwise known as the "Magna Carta for Women," provides that women shall
have equal rights in all matters relating to marriage and family relations, including
the joint decision on the number and spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states, is a shared responsibility between
parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health
procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection."244 Marje adopted the ruling of the US
Supreme Court in Griswold v. Connecticut,245 where Justice William O. Douglas
wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political
parties, older than our school system. Marriage is a coming together for better or
for worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
332
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons. Nevertheless,
it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor,
who will be undergoing a procedure, is already a parent or has had a miscarriage.
Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access to
modern methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is
already a parent or has had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to family planning. Even if she is
not yet emancipated, the parental authority is already cut off just because there is
a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say that
their consent is no longer relevant is clearly anti-family. It does not promote unity
in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government."247 In this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the
recognition that the State affords couples entering into the special contract of
marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents
in the care and custody of a minor child, whether or not the latter is already a
parent or has had a miscarriage. Only a compelling state interest can justify a state
substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the
second paragraph of Section 7 or with respect to the consenting spouse under
Section 23(a)(2)(i), a distinction must be made. There must be a differentiation
between access to information about family planning services, on one hand, and
access to the reproductive health procedures and modern family planning methods
themselves, on the other. Insofar as access to information is concerned, the Court
finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would
enable her to take proper care of her own body and that of her unborn child. After
all, Section 12, Article II of the Constitution mandates the State to protect both the
life of the mother as that of the unborn child. Considering that information to
enable a person to make informed decisions is essential in the protection and
maintenance of ones' health, access to such information with respect to
reproductive health must be allowed. In this situation, the fear that parents might
be deprived of their parental control is unfounded because they are not prohibited
to exercise parental guidance and control over their minor child and assist her in
deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
333
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In such
cases, the life of the minor who has already suffered a miscarriage and that of the
spouse should not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate medical care urgently
needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck
down. By effectively limiting the requirement of parental consent to "only in
elective surgical procedures," it denies the parents their right of parental authority
in cases where what is involved are "non-surgical procedures." Save for the two
exceptions discussed above, and in the case of an abused child as provided in the
first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their
constitutional right of parental authority. To deny them of this right would be an
affront to the constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive Health
Education under threat of fine and/or imprisonment violates the principle of
academic freedom . According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education even if they believe
that the same is not suitable to be taught to their students.250 Citing various studies
conducted in the United States and statistical data gathered in the country, the
petitioners aver that the prevalence of contraceptives has led to an increase of out-
of-wedlock births; divorce and breakdown of families; the acceptance of abortion
and euthanasia; the "feminization of poverty"; the aging of society; and promotion
of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the
RH Law is premature because the Department of Education, Culture and Sports has
yet to formulate a curriculum on age-appropriate reproductive health education.
One can only speculate on the content, manner and medium of instruction that will
be used to educate the adolescents and whether they will contradict the religious
beliefs of the petitioners and validate their apprehensions. Thus, considering the
premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural
and primary right and duty of parents in the rearing of the youth for civic efficiency

and development of moral character shall receive the support of the Government.
Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms
the State recognition of the invaluable role of parents in preparing the youth to
become productive members of society. Notably, it places more importance on the
role of parents in the development of their children by recognizing that said role
shall be "primary," that is, that the right of parents in upbringing the youth is
superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the
moral development of the youth. Indeed, the Constitution makes mention of the
importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the development of
knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence
and teen pregnancy; physical, social and emotional changes in adolescents;
women's rights and children's rights; responsible teenage behavior; gender and
development; and responsible parenthood, and that Rule 10, Section 11.01 of the
RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of responsible
teenage behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the assailed
provision supplements, rather than supplants, the rights and duties of the parents
in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health
education program shall be developed in conjunction with parent-teacher-
community associations, school officials and other interest groups, it could very
well be said that it will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the petitioners' contention
that Section 14 violates Article XV, Section 3(1) of the Constitution is without
merit.254
While the Court notes the possibility that educators might raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates
the due process clause of the Constitution. According to them, Section 23 (a)(l)
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mentions a "private health service provider" among those who may be held
punishable but does not define who is a "private health care service provider."
They argue that confusion further results since Section 7 only makes reference to a
"private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health service
and modern family planning methods. It is unclear, however, if these institutions
are also exempt from giving reproductive health information under Section 23(a)(l),
or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by
it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance with their plain
meaning alone, but also in relation to other parts of the statute. It is a rule that
every part of the statute must be interpreted with reference to the context, that is,
every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care
service provider," reference must be made to Section 4(n) of the RH Law which
defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution,
which is duly licensed and accredited and devoted primarily to the maintenance
and operation of facilities for health promotion, disease prevention, diagnosis,
treatment and care of individuals suffering from illness, disease, injury, disability or
deformity, or in need of obstetrical or other medical and nursing care; (2) public
health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)

public health worker engaged in the delivery of health care services; or (4)
barangay health worker who has undergone training programs under any
accredited government and NGO and who voluntarily renders primarily health care
services in the community after having been accredited to function as such by the
local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law,
instead of "private health care service provider," should not be a cause of
confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the providing of information
and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes
health care service providers who intentionally withhold, restrict and provide
incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full
range of legal, medically-safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a
copy or model or with established rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to coincide with the
335
truth. 257 On the other hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public
as to the nature and effect of programs and services on reproductive health. Public
health and safety demand that health care service providers give their honest and
correct medical information in accordance with what is acceptable in medical
practice. While health care service providers are not barred from expressing their
own personal opinions regarding the programs and services on reproductive
health, their right must be tempered with the need to provide public health and
safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause
under the Constitution as it discriminates against the poor because it makes them
the primary target of the government program that promotes contraceptive use .
They argue that, rather than promoting reproductive health among the poor, the
RH Law introduces contraceptives that would effectively reduce the number of the
poor. Their bases are the various provisions in the RH Law dealing with the poor,
especially those mentioned in the guiding principles259 and definition of terms260 of
the law.
They add that the exclusion of private educational institutions from the mandatory
reproductive health education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987 Constitution.
The equal protection of the laws is embraced in the concept of due process, as
every unfair discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice,
the sharper weapon to cut it down is the equal protection clause.

"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst itutions
to treat similarly situated individuals in a similar manner." "The purpose of the
equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate governmental
objective."
The equal protection clause is aimed at all official state actions, not just those of
the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or whatever
guise is taken.
It, however, does not require the universal application of the laws to all persons or
things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the
same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as
to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual belonging
to a class differs from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the law to
him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must be
336
of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]
To provide that the poor are to be given priority in the government's reproductive
health care program is not a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by providing that they be
given priority in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only seeks to target the poor
to reduce their number. While the RH Law admits the use of contraceptives, it does
not, as elucidated above, sanction abortion. As Section 3(1) explains, the
"promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may
have and does not impose conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks to charge couples with
the duty to have children only if they would raise them in a truly humane way, a
deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to
promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it to
state that the mere fact that the children of those who are less fortunate attend
public educational institutions does not amount to substantial distinction sufficient
to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions,
particularly because there is a need to recognize the academic freedom of private

educational institutions especially with respect to religious instruction and to
consider their sensitivity towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the
constitutional prohibition against involuntary servitude. They posit that Section 17
of the assailed legislation requiring private and non-government health care service
providers to render forty-eight (48) hours of pro bono reproductive health services,
actually amounts to involuntary servitude because it requires medical practitioners
to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17
can hardly be considered as forced labor analogous to slavery, as reproductive
health care service providers have the discretion as to the manner and time of
giving pro bono services. Moreover, the OSG points out that the imposition is
within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued
with public interest that it is both a power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the qualifications for the practice of
professions or trades which affect the public welfare, the public health, the public
morals, and the public safety; and to regulate or control such professions or trades,
even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes
the presence of force, threats, intimidation or other similar means of coercion and
compulsion.265 A reading of the assailed provision, however, reveals that it only
encourages private and non- government reproductive healthcare service
providers to render pro bono service. Other than non-accreditation with
PhilHealth, no penalty is imposed should they choose to do otherwise. Private and
non-government reproductive healthcare service providers also enjoy the liberty to
choose which kind of health service they wish to provide, when, where and how to
provide it or whether to provide it all. Clearly, therefore, no compulsion, force or
337
threat is made upon them to render pro bono service against their will. While the
rendering of such service was made a prerequisite to accreditation with PhilHealth,
the Court does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long as
their religious beliefs and convictions do not allow them to render reproductive
health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the
power but also the competency to evaluate, register and cover health services and
methods. It is the only government entity empowered to render such services and
highly proficient to do so. It should be understood that health services and
methods fall under the gamut of terms that are associated with what is ordinarily
understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to
be called the Food and Drug Administration (FDA) in the Department of Health
(DOH). Said Administration shall be under the Office of the Secretary and shall have
the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation
of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for compliance
with regulations regarding operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other establishments and facilities of
health products, as determined by the FDA;
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products to
report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a consumer,
a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for
health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30) days
and may be extended for sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a consumer
or patient, or is found to be imminently injurious, unsafe, dangerous, or grossly
deceptive, and to require all concerned to implement the risk management plan
which is a requirement for the issuance of the appropriate authorization;
As can be gleaned from the above, the functions, powers and duties of the FDA are
specific to enable the agency to carry out the mandates of the law. Being the
country's premiere and sole agency that ensures the safety of food and medicines
available to the public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of necessary implication,
the mandate by Congress to the FDA to ensure public health and safety by
permitting only food and medicines that are safe includes "service" and "methods."
From the declared policy of the RH Law, it is clear that Congress intended that the
public be given only those medicines that are proven medically safe, legal, non-
338
abortifacient, and effective in accordance with scientific and evidence-based
medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the
legislature may not have the competence, let alone the interest and the time, to
provide the required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under
Section 17 of the Local Government Code. Said Section 17 vested upon the LGUs
the duties and functions pertaining to the delivery of basic services and facilities, as
follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall
continue exercising the powers and discharging the duties and functions
currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them
pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as
are necessary, appropriate, or incidental to efficient and effective
provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the
functions and responsibilities that have already been devolved upon
them from the national agencies on the aspect of providing for basic
services and facilities in their respective jurisdictions, paragraph (c) of the

same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works
and infrastructure projects and other facilities, programs and services
funded by the National Government under the annual General
Appropriations Act, other special laws, pertinent executive orders, and
those wholly or partially funded from foreign sources, are not covered
under this Section, except in those cases where the local government unit
concerned is duly designated as the implementing agency for such
projects, facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national government is
that, unless an LGU is particularly designated as the implementing agency, it has no
power over a program for which funding has been provided by the national
government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing
basic facilities and services cannot be implied as the Local Government Code itself
weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation. Local
autonomy is not absolute. The national government still has the say when it comes
to national priority programs which the local government is called upon to
implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged
to provide these services. There is nothing in the wording of the law which can be
construed as making the availability of these services mandatory for the LGUs. For
said reason, it cannot be said that the RH Law amounts to an undue encroachment
by the national government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments
can be equally applied to the ARMM. The RH Law does not infringe upon its
autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
339
organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of
the operation of the RH Law in the autonomous region, refer to the policy
statements for the guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may be exercised by the
regional government, which can, in no manner, be characterized as an abdication
by the State of its power to enact legislation that would benefit the general
welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the notion
of imperium et imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary
power to legislate on all subjects which extends to all matters of general concern or
common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the Constitution. While every law enacted
by man emanated from what is perceived as natural law, the Court is not obliged to
see if a statute, executive issuance or ordinance is in conformity to it. To begin
with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are
mere thoughts and notions on inherent rights espoused by theorists, philosophers
and theologists. The jurists of the philosophical school are interested in the law as
an abstraction, rather than in the actual law of the past or present.277 Unless, a
natural right has been transformed into a written law, it cannot serve as a basis to
strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every law
or action and whether it conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of
life. It does not allow abortion in any shape or form. It only seeks to enhance the
population control program of the government by providing information and
making non-abortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors of
society cannot be trampled upon in pursuit of what the law hopes to achieve. After
all, the Constitutional safeguard to religious freedom is a recognition that man
stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious
group cannot be allowed to impose its beliefs on the rest of the society. Philippine
modem society leaves enough room for diversity and pluralism. As such, everyone
should be tolerant and open-minded so that peace and harmony may continue to
reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the
Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long
run. The European and Asian countries, which embarked on such a program
generations ago , are now burdened with ageing populations. The number of their
young workers is dwindling with adverse effects on their economy. These young
workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to
reverse their programs, but they are still struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young able-
bodied workers. What would happen if the country would be weighed down by an
ageing population and the fewer younger generation would not be able to support
them? This would be the situation when our total fertility rate would go down
below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should
not use coercive measures (like the penal provisions of the RH Law against
conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.
340
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is
to say what the law is as enacted by the lawmaking body. That is not the same as
saying what the law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into the wisdom of the
law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the
application of a particular law. It is for the legislature to enact remedial legislation if
that would be necessary in the premises. But as always, with apt judicial caution
and cold neutrality, the Court must carry out the delicate function of interpreting
the law, guided by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the
lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws, but
with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the
assailed legislation. All the same, the principle of "no-abortion" and "non-coercion"
in the adoption of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court
declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as
they: a) require private health facilities and non-maternity specialty
hospitals and hospitals owned and operated by a religious group to refer
patients, not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a
miscarriage access to modem methods of family planning without written
consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any healthcare
service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his
or her religious beliefs.
 341

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR
insofar as they allow a married individual, not in an emergency or life-
threatening case, as defined under Republic Act No. 8344, to undergo
reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR
insofar as they limit the requirement of parental consent only to elective
surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No.
8344, to another health care service provider within the same facility or
one which is conveniently accessible regardless of his or her religious
beliefs;
IMBONG vs. OCHOA
FACTS:
Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood
and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on
December 21, 2012.Challengers from various sectors of society are questioning the
constitutionality of the said Act. The petitioners are assailing the constitutionality
of RH Law on the following grounds:
SUBSTANTIAL ISSUES:
1. The RH Law violates the right to life of the unborn.
2. The RH Law violates the right to health and the right to protection against
hazardous products.

6) Section 23(b) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any public officer
who refuses to support reproductive health programs or shall do any act
that hinders the full implementation of a reproductive health program,
regardless of his or her religious beliefs;
3. The RH Law violates the right to religious freedom.
4. The RH Law violates the constitutional provision on involuntary servitude.
5. The RH Law violates the right to equal protection of the law.

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding 6. The RH Law violates the right to free speech.
the rendering of pro bona reproductive health service in so far as they
affect the conscientious objector in securing PhilHealth accreditation; and 7. The RH Law is “void-for-vagueness” in violation of the due process clause of the
Constitution.
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the
qualifier "primarily" in defining abortifacients and contraceptives, as they 8. The RH Law intrudes into the zone of privacy of one’s family protected by the
are ultra vires and, therefore, null and void for contravening Section 4(a) Constitution
of the RH Law and violating Section 12, Article II of the Constitution.
PROCEDURAL:
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by
its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. Whether the Court may exercise its power of judicial review over the controversy.
No. 10354 which have been herein declared as constitutional.
1. Power of Judicial Review
SO ORDERED.
2. Actual Case or Controversy

3. Facial Challenge
 342

4. Locus Standi 5. One Subject/One Title Rule

5. Declaratory Relief Discussions:

6. One Subject/One Title Rule PROCEDURAL

Issue/s: Judicial Review Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites: (a) there must be an actual case or
SUBSTANTIAL ISSUES: controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of
Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional
constitutionality must be the lismota of the case.
for violating the:
Actual Controversy: An actual case or controversy means an existing case or
1. Right to life
controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory opinion. It
2. Right to health
must concern a real, tangible and not merely a theoretical question or issue. There
3. Freedom of religion and right to free speech ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising
4. Right to privacy (marital privacy and autonomy) what the law would be upon a hypothetical state of facts. Corollary to the
requirement of an actual case or controversy is the requirement of ripeness. A
5. Freedom of expression and academic freedom question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. For a case to be considered ripe for
6. Due process clause
adjudication, it is a prerequisite that something has then been accomplished or
7. Equal protection clause performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to
8. Prohibition against involuntary servitude himself as a result of the challenged action. He must show that he has sustained or
is immediately in danger of sustaining some direct injury as a result of the act
PROCEDURAL: complained of

Whether the Court can exercise its power of judicial review over the controversy. Facial Challenge: A facial challenge, also known as a First Amendment Challenge, is
one that is launched to assail the validity of statutes concerning not only protected
1. Actual Case or Controversy speech, but also all other rights in the First Amendment. These include religious
freedom, freedom of the press, and the right of the people to peaceably assemble,
2. Facial Challenge
and to petition the Government for a redress of grievances. After all, the
3. Locus Standi fundamental right to religious freedom, freedom of the press and peaceful
assembly are but component rights of the right to one’s freedom of expression, as
4. Declaratory Relief they are modes which one’s thoughts are externalized.

Locus Standi: Locus standi or legal standing is defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury as a
result of the challenged governmental act. It requires a personal stake in the
outcome of the controversy as to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.
Transcendental Importance: the Court leans on the doctrine that “the rule on
standing is a matter of procedure, hence, can be relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest
so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest.”
One Subject-One Title: The “one title-one subject” rule does not require the
Congress to employ in the title of the enactment language of such precision as to
mirror, fully index or catalogue all the contents and the minute details therein. The
rule is sufficiently complied with if the title is comprehensive enough as to include
the general object which the statute seeks to effect, and where, as here, the
persons interested are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has invariably adopted a
liberal rather than technical construction of the rule “so as not to cripple or impede
legislation.” The one subject/one title rule expresses the principle that the title of a
law must not be “so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents, or
which is misleading, either in referring to or indicating one subject where another
or different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act.”
Declaration of Unconstitutionality: Orthodox view: An unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, as inoperative as though it had never been
passed. Modern view: Under this view, the court in passing upon the question of
constitutionality does not annul or repeal the statute if it finds it in conflict with the
Constitution. It simply refuses to recognize it and determines the rights of the
parties just as if such statute had no existence. But certain legal effects of the
statute prior to its declaration of unconstitutionality may be recognized. Requisites
for partial unconstitutionality: (1) The Legislature must be willing to retain the valid
343
portion(s), usually shown by the presence of a separability clause in the law; and
(2) The valid portion can stand independently as law.
Ruling/s:
SUBSTANTIAL
1. Majority of the Members of the Court believe that the question of when
life begins is a scientific and medical issue that should not be decided, at
this stage, without proper hearing and evidence. However, they agreed
that individual Members could express their own views on this matter.
Article II, Section 12 of the Constitution states: “The State recognizes the sanctity of
family life and shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the unborn
from conception.”
In its plain and ordinary meaning (a canon in statutory construction), the traditional
meaning of “conception” according to reputable dictionaries cited by the ponente
is that life begins at fertilization. Medical sources also support the view that
conception begins at fertilization.
The framers of the Constitution also intended for (a) “conception” to refer to the
moment of “fertilization” and (b) the protection of the unborn child upon
fertilization. In addition, they did not intend to ban all contraceptives for being
unconstitutional; only those that kill or destroy the fertilized ovum would be
prohibited. Contraceptives that actually prevent the union of the male sperm and
female ovum, and those that similarly take action before fertilization should be
deemed non-abortive, and thus constitutionally permissible.
The intent of the framers of the Constitution for protecting the life of the unborn
child was to prevent the Legislature from passing a measure prevent abortion. The
Court cannot interpret this otherwise. The RH Law is in line with this intent and
actually prohibits abortion. By using the word “or” in defining abortifacient (Section
4(a)), the RH Law prohibits not only drugs or devices that prevent implantation but
also those that induce abortion and induce the destruction of a fetus inside the
mother’s womb. The RH Law recognizes that the fertilized ovum already has life
and that the State has a bounded duty to protect it.

However, the authors of the IRR gravely abused their office when they redefined
the meaning of abortifacient by using the term “primarily”. Recognizing as
abortifacients only those that “primarily induce abortion or the destruction of a
fetus inside the mother’s womb or the prevention of the fertilized ovum to reach
and be implanted in the mother’s womb” (Sec. 3.01(a) of the IRR) would pave the
way for the approval of contraceptives that may harm or destroy the life of the
unborn from conception/fertilization. This violates Section 12, Article II of the
Constitution. For the same reason, the definition of contraceptives under the IRR
(Sec 3.01(j)), which also uses the term “primarily”, must be struck down.
2. The RH Law does not intend to do away with RA 4729 (1966). With RA
4729 in place, the Court believes adequate safeguards exist to ensure
that only safe contraceptives are made available to the public. In fulfilling
its mandate under Sec. 10 of the RH Law, the DOH must keep in mind the
provisions of RA 4729: the contraceptives it will procure shall be from a
duly licensed drug store or pharmaceutical company and that the actual
distribution of these contraceptive drugs and devices will be done
following a prescription of a qualified medical practitioner.
Meanwhile, the requirement of Section 9 of the RH Law is to be considered
“mandatory” only after these devices and materials have been tested, evaluated
and approved by the FDA. Congress cannot determine that contraceptives are
“safe, legal, non-abortificient and effective”.
3. The Court cannot determine whether or not the use of contraceptives or
participation in support of modern RH measures (a) is moral from a
religious standpoint; or, (b) right or wrong according to one’s dogma or
belief. However, the Court has the authority to determine whether or not
the RH Law contravenes the Constitutional guarantee of religious
freedom.
The State may pursue its legitimate secular objectives without being dictated upon
the policies of any one religion. To allow religious sects to dictate policy or restrict
other groups would violate Article III, Section 5 of the Constitution or the
Establishment Clause. This would cause the State to adhere to a particular religion,
and thus, establishes a state religion. Thus, the State can enhance its population
control program through the RH Law even if the promotion of contraceptive use is
contrary to the religious beliefs of e.g. the petitioners.
344
4. Section 23A (2)(i) of the RH Law, which permits RH procedures even with
only the consent of the spouse undergoing the provision (disregarding
spousal content), intrudes into martial privacy and autonomy and goes
against the constitutional safeguards for the family as the basic social
institution. Particularly, Section 3, Article XV of the Constitution
mandates the State to defend: (a) the right of spouses to found a family
in accordance with their religious convictions and the demands of
responsible parenthood and (b) the right of families or family associations
to participate in the planning and implementation of policies and
programs that affect them. The RH Law cannot infringe upon this mutual
decision-making, and endanger the institutions of marriage and the
family.
The exclusion of parental consent in cases where a minor undergoing a procedure
is already a parent or has had a miscarriage (Section 7 of the RH Law) is also anti-
family and violates Article II, Section 12 of the Constitution, which states: “The
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government.” In addition, the portion of Section 23(a)(ii) which reads “in the case
of minors, the written consent of parents or legal guardian or, in their absence,
persons exercising parental authority or next-of-kin shall be required only in
elective surgical procedures” is invalid as it denies the right of parental authority in
cases where what is involved is “non-surgical procedures.”
However, a minor may receive information (as opposed to procedures) about
family planning services. Parents are not deprived of parental guidance and control
over their minor child in this situation and may assist her in deciding whether to
accept or reject the information received. In addition, an exception may be made in
life-threatening procedures.
5. The Court declined to rule on the constitutionality of Section 14 of the RH
Law, which mandates the State to provide Age-and Development-
Appropriate Reproductive Health Education. Although educators might
raise their objection to their participation in the RH education program,
the Court reserves its judgment should an actual case be filed before it.

Any attack on its constitutionality is premature because the Department of
Education has not yet formulated a curriculum on age-appropriate reproductive
health education.
Section 12, Article II of the Constitution places more importance on the role of
parents in the development of their children with the use of the term “primary”.
The right of parents in upbringing their youth is superior to that of the State.
The provisions of Section 14 of the RH Law and corresponding provisions of the IRR
supplement (rather than supplant) the right and duties of the parents in the moral
development of their children.
By incorporating parent-teacher-community associations, school officials, and
other interest groups in developing the mandatory RH program, it could very well
be said that the program will be in line with the religious beliefs of the petitioners.
6. The RH Law does not violate the due process clause of the Constitution as
the definitions of several terms as observed by the petitioners are not
vague.
The definition of “private health care service provider” must be seen in relation to
Section 4(n) of the RH Law which defines a “public health service provider”. The
“private health care institution” cited under Section 7 should be seen as
synonymous to “private health care service provider.
The terms “service” and “methods” are also broad enough to include providing of
information and rendering of medical procedures. Thus, hospitals operated by
religious groups are exempted from rendering RH service and modern family
planning methods (as provided for by Section 7 of the RH Law) as well as from
giving RH information and procedures.
The RH Law also defines “incorrect information”. Used together in relation to
Section 23 (a)(1), the terms “incorrect” and “knowingly” connote a sense of malice
and ill motive to mislead or misrepresent the public as to the nature and effect of
programs and services on reproductive health.
7. To provide that the poor are to be given priority in the government’s RH
program is not a violation of the equal protection clause. In fact, it is
345
pursuant to Section 11, Article XIII of the Constitution, which states that
the State shall prioritize the needs of the underprivileged, sick elderly,
disabled, women, and children and that it shall endeavor to provide
medical care to paupers.
The RH Law does not only seek to target the poor to reduce their number, since
Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering
from fertility issues and desire to have children. In addition, the RH Law does not
prescribe the number of children a couple may have and does not impose
conditions upon couples who intend to have children. The RH Law only seeks to
provide priority to the poor.
The exclusion of private educational institutions from the mandatory RH education
program under Section 14 is valid. There is a need to recognize the academic
freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive
health education
8. The requirement under Sec. 17 of the RH Law for private and non-
government health care service providers to render 48 hours of pro
bonoRH services does not amount to involuntary servitude, for two
reasons. First, the practice of medicine is undeniably imbued with public
interest that it is both the power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Second,
Section 17 only encourages private and non-government RH service
providers to render pro bono Besides the PhilHealth accreditation, no
penalty is imposed should they do otherwise.
However, conscientious objectors are exempt from Sec. 17 as long as their religious
beliefs do not allow them to render RH service, pro bono or otherwise
PROCEDURAL
1. In this case, the Court is of the view that an actual case or controversy
exists and that the same is ripe for judicial determination. Considering
that the RH Law and its implementing rules have already taken effect and
that budgetary measures to carry out the law have already been passed,
it is evident that the subject petitions present a justiciable controversy.

As stated earlier, when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it not only becomes a right,
but also a duty of the Judiciary to settle the dispute.
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter now.
2. In this jurisdiction, the application of doctrines originating from the U.S.
has been generally maintained, albeit with some modifications. While the
Court has withheld the application of facial challenges to strictly penal
statues, it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other
fundamental rights. The underlying reason for this modification is simple.
For unlike its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law not only to settle
actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. Verily, the
framers of Our Constitution envisioned a proactive Judiciary, ever vigilant
with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental
rights mentioned above have been violated by the assailed legislation, the Court
has authority to take cognizance of these kindred petitions and to determine if the
RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law
has been transgressed, to the detriment of the Filipino people.
3. Even if the constitutionality of the RH Law may not be assailed through
an “as-applied challenge, still, the Court has time and again acted liberally
on the locus standi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest
346
affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after
all, a procedural technicality which the Court has, on more than one
occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such
as concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been directly injured by the operation
of a law or any other government act.
The present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that the
Court set aside the technical defects and take primary jurisdiction over the petition
at bar. One cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the youth;
hence, their proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial justice, must
always be eschewed.
4. Most of the petitions are praying for injunctive reliefs and so the Court would
just consider them as petitions for prohibition under Rule 65, over which it has
original jurisdiction. Where the case has far-reaching implications and prays for
injunctive reliefs, the Court may consider them as petitions for prohibition under
Rule 65.
5. The RH Law does not violate the one subject/one bill rule. In this case, a textual
analysis of the various provisions of the law shows that both “reproductive health”
and “responsible parenthood” are interrelated and germane to the overriding
objective to control the population growth. As expressed in the first paragraph of
Section 2 of the RH Law:
SEC. 2. Declaration of Policy. – The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of these
rights, the right to sustainable human development, the right to health which
includes reproductive health, the right to education and information, and the right
to choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
 347

Considering the close intimacy between “reproductive health” and “responsible
parenthood” which bears to the attainment of the goal of achieving “sustainable
human development” as stated under its terms, the Court finds no reason to
believe that Congress intentionally sought to deceive the public as to the contents
of the assailed legislation.
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section
5 .24 thereof, insofar as they punish any public officer who refuses to support
reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her religious
beliefs;

Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except
with respect to the following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and hospitals
owned and operated by a religious group to refer patients, not in an emergency or
life-threatening case, as defined under Republic Act No. 8344, to another health
facility which is conveniently accessible; and b) allow minor-parents or minors who
have suffered a miscarriage access to modem methods of family planning without
written consent from their parents or guardian/s;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
“primarily” in defining abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any healthcare service provider who
fails and or refuses to disseminate information regarding programs and services on
reproductive health regardless of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they
allow a married individual, not in an emergency or life-threatening case, as defined
under Republic Act No. 8344, to undergo reproductive health procedures without
the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they
limit the requirement of parental consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly

Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails and/or refuses to refer a patient not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health care service provider
within the same facility or one which is conveniently accessible regardless of his or
her religious beliefs;
 348

THIRD DIVISION At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did
not attend the hearing despite being duly notified of the schedule. After the pre-
G.R. No. 198780 October 16, 2013 trial, hearing on the merits ensued.

REPUBLIC OF THE PHILIPPINES, Petitioner, Ruling of the RTC

vs.
LIBERTY D. ALBIOS, Respondent. In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the
dispositive portion of which reads:
DECISION
WHEREFORE, premises considered, judgment is hereby rendered declaring the
MENDOZA, J.: marriage of Liberty Albios and Daniel Lee Fringer as void from the very beginning.
As a necessary consequence of this pronouncement, petitioner shall cease using
the surname of respondent as she never acquired any right over it and so as to
This is a petition for review on certiorari under Rule 45 of the Rules t of Court
avoid a misimpression that she remains the wife of respondent.
assailing the September 29, 2011 Decision1 of the Court of Appeals (CA), in CA-G.R.
CV No. 95414, which affirmed the April 25, 2008Decision2 of the Regional Trial
Court, Imus, Cavite (RTC). declaring the marriage of Daniel Lee Fringer (Fringer) and SO ORDERED.6
respondent Liberty Albios (A/bios) as void from the beginning.
The RTC was of the view that the parties married each other for convenience only.
The facts Giving credence to the testimony of Albios, it stated that she contracted Fringer to
enter into a marriage to enable her to acquire American citizenship; that in
consideration thereof, she agreed to pay him the sum of $2,000.00; that after the
On October 22, 2004, Fringer, an American citizen, and Albios were married before
ceremony, the parties went their separate ways; that Fringer returned to the
Judge Ofelia I. Calo of the Metropolitan Trial Court, Branch59, Mandaluyong City
United States and never again communicated with her; and that, in turn, she did
(MeTC), as evidenced by a Certificate of Marriage with Register No. 2004-1588.3
not pay him the $2,000.00 because he never processed her petition for citizenship.
The RTC, thus, ruled that when marriage was entered into for a purpose other than
On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity the establishment of a conjugal and family life, such was a farce and should not be
4 of her marriage with Fringer. She alleged that immediately after their marriage, recognized from its inception.
they separated and never lived as husband and wife because they never really had
any intention of entering into a married state or complying with any of their
Petitioner Republic of the Philippines, represented by the Office of the Solicitor
essential marital obligations. She described their marriage as one made in jest and,
General (OSG), filed a motion for reconsideration. The RTC issued the Order, 7
therefore, null and void ab initio .
dated February 5, 2009, denying the motion for want of merit. It explained that the
marriage was declared void because the parties failed to freely give their consent
Summons was served on Fringer but he did not file his answer. On September 13, to the marriage as they had no intention to be legally bound by it and used it only
2007, Albios filed a motion to set case for pre-trial and to admit her pre-trial brief. as a means to acquire American citizenship in consideration of $2,000.00.
The RTC ordered the Assistant Provincial Prosecutor to conduct an investigation
and determine the existence of a collusion. On October 2, 2007, the Assistant
Not in conformity, the OSG filed an appeal before the CA.
Prosecutor complied and reported that she could not make a determination for
failure of both parties to appear at the scheduled investigation.

Ruling of the CA
In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling
which found that the essential requisite of consent was lacking. The CA stated that
the parties clearly did not understand the nature and consequence of getting
married and that their case was similar to a marriage in jest. It further explained
that the parties never intended to enter into the marriage contract and never
intended to live as husband and wife or build a family. It concluded that their
purpose was primarily for personal gain, that is, for Albios to obtain foreign
citizenship, and for Fringer, the consideration of $2,000.00.
Hence, this petition.
Assignment of Error
THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A
MARRIAGE CONTRACTED FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP
WAS DONEIN JEST, HENCE, LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8
The OSG argues that albeit the intention was for Albios to acquire American
citizenship and for Fringer to be paid $2,000.00, both parties freely gave their
consent to the marriage, as they knowingly and willingly entered into that marriage
and knew the benefits and consequences of being bound by it. According to the
OSG, consent should be distinguished from motive, the latter being
inconsequential to the validity of marriage.
The OSG also argues that the present case does not fall within the concept of a
marriage in jest. The parties here intentionally consented to enter into a real and
valid marriage, for if it were otherwise, the purpose of Albios to acquire American
citizenship would be rendered futile.
On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her
stand that her marriage was similar to a marriage by way of jest and, therefore,
void from the beginning.
On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition
for review on certiorari.
349
Ruling of the Court
The resolution of this case hinges on this sole question of law: Is a marriage,
contracted for the sole purpose of acquiring American citizenship in consideration
of $2,000.00, void ab initio on the ground of lack of consent?
The Court resolves in the negative.
Before the Court delves into its ruling, It shall first examine the phenomenon of
marriage fraud for the purposes of immigration.
Marriage Fraud in Immigration
The institution of marriage carries with it concomitant benefits. This has led to the
development of marriage fraud for the sole purpose of availing of particular
benefits. In the United States, marriages where a couple marries only to achieve a
particular purpose or acquire specific benefits, have been referred to as "limited
purpose" marriages.11 A common limited purpose marriage is one entered into
solely for the legitimization of a child.12 Another, which is the subject of the present
case, is for immigration purposes. Immigration law is usually concerned with the
intention of the couple at the time of their marriage,13 and it attempts to filter out
those who use marriage solely to achieve immigration status.14
In 1975, the seminal case of Bark v. Immigration and Naturalization
Service,15 established the principal test for determining the presence of marriage
fraud in immigration cases. It ruled that a "marriage is a sham if the bride and
groom did not intend to establish a life together at the time they were married.
"This standard was modified with the passage of the Immigration Marriage Fraud
Amendment of 1986 (IMFA), which now requires the couple to instead
demonstrate that the marriage was not "entered into for the purpose of evading
the immigration laws of the United States." The focus, thus, shifted from
determining the intention to establish a life together, to determining the intention
of evading immigration laws.16 It must be noted, however, that this standard is
used purely for immigration purposes and, therefore, does not purport to rule on
the legal validity or existence of a marriage.
The question that then arises is whether a marriage declared as a sham or
fraudulent for the limited purpose of immigration is also legally void and in
existent. The early cases on limited purpose marriages in the United States made
no definitive ruling. In 1946, the notable case of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien
to stay in the country, the parties had agreed to marry but not to live together and
to obtain a divorce within six months. The Court, through Judge Learned Hand,
ruled that a marriage to convert temporary into permanent permission to stay in
the country was not a marriage, there being no consent, to wit:
x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is
necessary to every contract; and no matter what forms or ceremonies the parties
may go through indicating the contrary, they do not contract if they do not in fact
assent, which may always be proved. x x x Marriage is no exception to this rule: a
marriage in jest is not a marriage at all. x x x It is quite true that a marriage without
subsequent consummation will be valid; but if the spouses agree to a marriage only
for the sake of representing it as such to the outside world and with the
understanding that they will put an end to it as soon as it has served its purpose to
deceive, they have never really agreed to be married at all. They must assent to
enter into the relation as it is ordinarily understood, and it is not ordinarily
understood as merely a pretence, or cover, to deceive others.18
On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic
Lines,19 which declared as valid a marriage entered into solely for the husband to
gain entry to the United States, stating that a valid marriage could not be avoided
"merely because the marriage was entered into for a limited purpose."20 The 1980
immigration case of Matter of McKee,21 further recognized that a fraudulent or
sham marriage was intrinsically different from a non subsisting one.
Nullifying these limited purpose marriages for lack of consent has, therefore, been
recognized as problematic. The problem being that in order to obtain an
immigration benefit, a legal marriage is first necessary.22 At present, United States
courts have generally denied annulments involving" limited purpose" marriages
where a couple married only to achieve a particular purpose, and have upheld such
marriages as valid.23
The Court now turns to the case at hand.
Respondent’s marriage not void
In declaring the respondent’s marriage void, the RTC ruled that when a marriage
was entered into for a purpose other than the establishment of a conjugal and
family life, such was a farce and should not be recognized from its inception. In its
resolution denying the OSG’s motion for reconsideration, the RTC went on to
350
explain that the marriage was declared void because the parties failed to freely give
their consent to the marriage as they had no intention to be legally bound by it and
used it only as a means for the respondent to acquire American citizenship.
Agreeing with the RTC, the CA ruled that the essential requisite of consent was
lacking. It held that the parties clearly did not understand the nature and
consequence of getting married. As in the Rubenstein case, the CA found the
marriage to be similar to a marriage in jest considering that the parties only
entered into the marriage for the acquisition of American citizenship in exchange of
$2,000.00. They never intended to enter into a marriage contract and never
intended to live as husband and wife or build a family.
The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack
of consent. Under Article 2 of the Family Code, consent is an essential requisite of
marriage. Article 4 of the same Code provides that the absence of any essential
requisite shall render a marriage void ab initio.
Under said Article 2, for consent to be valid, it must be (1) freely given and (2)
made in the presence of a solemnizing officer. A "freely given" consent requires
that the contracting parties willingly and deliberately enter into the marriage.
Consent must be real in the sense that it is not vitiated nor rendered defective by
any of the vices of consent under Articles45 and 46 of the Family Code, such as
fraud, force, intimidation, and undue influence.24Consent must also be conscious or
intelligent, in that the parties must be capable of intelligently understanding the
nature of, and both the beneficial or unfavorable consequences of their act.25 Their
understanding should not be affected by insanity, intoxication, drugs, or
hypnotism.26
Based on the above, consent was not lacking between Albios and Fringer. In fact,
there was real consent because it was not vitiated nor rendered defective by any
vice of consent. Their consent was also conscious and intelligent as they
understood the nature and the beneficial and inconvenient consequences of their
marriage, as nothing impaired their ability to do so. That their consent was freely
given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and
deliberately contracted the marriage. There was a clear intention to enter into a
real and valid marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete understanding of the
legal tie that would be created between them, since it was that precise legal tie
which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized
such as akin to a marriage by way of jest. A marriage in jest is a pretended
marriage, legal in form but entered into as a joke, with no real intention of entering
into the actual marriage status, and with a clear understanding that the parties
would not be bound. The ceremony is not followed by any conduct indicating a
purpose to enter into such a relation.27 It is a pretended marriage not intended to
be real and with no intention to create any legal ties whatsoever, hence, the
absence of any genuine consent. Marriages in jest are void ab initio, not for
vitiated, defective, or unintelligent consent, but for a complete absence of consent.
There is no genuine consent because the parties have absolutely no intention of
being bound in any way or for any purpose.
The respondent’s marriage is not at all analogous to a marriage in
jest.1âwphi1 Albios and Fringer had an undeniable intention to be bound in order
to create the very bond necessary to allow the respondent to acquire American
citizenship. Only a genuine consent to be married would allow them to further their
objective, considering that only a valid marriage can properly support an
application for citizenship. There was, thus, an apparent intention to enter into the
actual marriage status and to create a legal tie, albeit for a limited purpose.
Genuine consent was, therefore, clearly present.
The avowed purpose of marriage under Article 1 of the Family Code is for the
couple to establish a conjugal and family life. The possibility that the parties in a
marriage might have no real intention to establish a life together is, however,
insufficient to nullify a marriage freely entered into in accordance with law. The
same Article 1 provides that the nature, consequences, and incidents of marriage
are governed by law and not subject to stipulation. A marriage may, thus, only be
declared void or voidable under the grounds provided by law. There is no law that
declares a marriage void if it is entered into for purposes other than what the
Constitution or law declares, such as the acquisition of foreign citizenship.
Therefore, so long as all the essential and formal requisites prescribed by law are
present, and it is not void or voidable under the grounds provided by law, it shall be
declared valid.28
Motives for entering into a marriage are varied and complex. The State does not
and cannot dictate on the kind of life that a couple chooses to lead. Any attempt to
regulate their lifestyle would go into the realm of their right to privacy and would
raise serious constitutional questions.29 The right to marital privacy allows married
couples to structure their marriages in almost any way they see fit, to live together
or live apart, to have children or no children, to love one another or not, and so
on.30 Thus, marriages entered into for other purposes, limited or otherwise, such as
351
convenience, companionship, money, status, and title, provided that they comply
with all the legal requisites,31are equally valid. Love, though the ideal consideration
in a marriage contract, is not the only valid cause for marriage. Other
considerations, not precluded by law, may validly support a marriage.
Although the Court views with disdain the respondent’s attempt to utilize marriage
for dishonest purposes, It cannot declare the marriage void. Hence, though the
respondent’s marriage may be considered a sham or fraudulent for the purposes of
immigration, it is not void ab initio and continues to be valid and subsisting.
Neither can their marriage be considered voidable on the ground of fraud under
Article 45 (3) of the Family Code. Only the circumstances listed under Article 46 of
the same Code may constitute fraud, namely, (1) non- disclosure of a previous
conv1ctwn involving moral turpitude; (2) concealment by the wife of a pregnancy
by another man; (3) concealment of a sexually transmitted disease; and (4)
concealment of drug addiction, alcoholism, or homosexuality. No other
misrepresentation or deceit shall constitute fraud as a ground for an action to
annul a marriage. Entering into a marriage for the sole purpose of evading
immigration laws does not qualify under any of the listed circumstances.
Furthermore, under Article 47 (3), the ground of fraud may only be brought by the
injured or innocent party. In the present case, there is no injured party because
Albios and Fringer both conspired to enter into the sham marriage.
Albios has indeed made a mockery of the sacred institution of marriage. Allowing
her marriage with Fringer to be declared void would only further trivialize this
inviolable institution. The Court cannot declare such a marriage void in the event
the parties fail to qualify for immigration benefits, after they have availed of its
benefits, or simply have no further use for it. These unscrupulous individuals
cannot be allowed to use the courts as instruments in their fraudulent schemes.
Albios already misused a judicial institution to enter into a marriage of
convenience; she should not be allowed to again abuse it to get herself out of an
inconvenient situation.
No less than our Constitution declares that marriage, as an in violable social
institution, is the foundation of the family and shall be protected by the State.32 It
must, therefore, be safeguarded from the whims and caprices of the contracting
parties. This Court cannot leave the impression that marriage may easily be
entered into when it suits the needs of the parties, and just as easily nullified when
no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the
Court of Appeals in CA-G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06
is DISMISSED for utter lack of merit.
SO ORDERED.
FACTS:
Fringer and Liberty Albios got married on October 22, 2004, before the sala of
Judge Calo in Mandaluyong City. 2 years after their marriage (December 6, 2006),
Albios filed with the RTC a petition for declaration of nullity of her marriage with
Fringer. According to her, the marriage was a marriage in jest because she only
wed the American to acquire US citizenship and even arranged to pay him $2,000
in exchange for his consent. Adding that immediately after their marriage, they
separated and never lived as husband and wife because they never really had any
intention of entering into a married state and complying with their marital
obligations. The court even sent summons to the husband but he failed to file an
answer.
Both the RTC and CA ruled in favor of Albios declaring that the marriage was void
ab initio for lack of consent because the parties failed to freely give their consent to
the marriage as they had no intention to be legally bound by it and used it only as a
means to acquire American citizenship in consideration of $2,000.00.. However,
the Office of the Solicitor General (OSG) elevated the case to the SC. According to
the OSG, the case do not fall within the concept of a marriage in jest as the parties
intentionally consented to enter into a real and valid marriage. That the parties
here intentionally consented to enter into a real and valid marriage, for if it were
otherwise, the purpose of Albios to acquire American citizenship would be
rendered futile.
ISSUE: Is a marriage, contracted for the sole purpose of acquiring American
citizenship in consideration of $2,000.00, void ab initio on the ground of lack of
consent?
RULING:
NO. Both Fringer and Albios consented to the marriage. In fact, there was real
consent because it was not vitiated nor rendered defective by any vice of consent.
352
Their consent was also conscious and intelligent as they understood the nature and
the beneficial and inconvenient consequences of their marriage, as nothing
impaired their ability to do so.
That their consent was freely given is best evidenced by their conscious purpose of
acquiring American citizenship through marriage. Such plainly demonstrates that
they willingly and deliberately contracted the marriage. There was a clear intention
to enter into a real and valid marriage so as to fully comply with the requirements
of an application for citizenship. There was a full and complete understanding of
the legal tie that would be created between them, since it was that precise legal tie
which was necessary to accomplish their goal.
Under Article 2 of the Family Code, for consent to be valid, it must be (1) freely
given and (2) made in the presence of a solemnizing officer.
A "freely given" consent requires that the contracting parties willingly and
deliberately enter into the marriage.
Consent must be real in the sense that it is not vitiated nor rendered defective by
any of the vices of consent under Articles 45 and 46 of the Family Code, such as
fraud, force, intimidation, and undue influence. None of these are present in the
case.
Therefore, their marriage remains valid.
FACTS
Respondent Libert Albios married Daniel Lee Fringer, an American citizen. She later
on filed a petition to nullify their marriage. She alleged that immediately after their
marriage, they separated and never lived as husband and wife because they never
really had any intention of entering into a married state or complying with any of
their essential marital obligations. She said that she contracted Fringer to enter
into a marriage to enable her to acquire American citizenship; that in consideration
thereof, she agreed to pay him the sum of $2,000.00; that after the ceremony, the
parties went their separate ways; that Fringer returned to the United States and
never again communicated with her; and that, in turn, she did not pay him the
$2,000.00 because he never processed her petition for citizenship. She described
their marriage as one made in jest and, therefore, null and void ab initio.
 353

The RTC ruled in her favor.
In declaring the respondent’s marriage void, the RTC ruled that when a marriage
was entered into for a purpose other than the establishment of a conjugal and
family life, such was a farce and should not be recognized from its inception. In its
resolution denying the OSG’s motion for reconsideration, the RTC went on to
explain that the marriage was declared void because the parties failed to freely give
their consent to the marriage as they had no intention to be legally bound by it and
used it only as a means for the respondent to acquire American citizenship.
Not in conformity, the OSG filed an appeal before the CA. The CA, however, upheld
the RTC decision.
Agreeing with the RTC, the CA ruled that the essential requisite of consent was
lacking. It held that the parties clearly did not understand the nature and
consequence of getting married. As in the Rubenstein case, the CA found the
marriage to be similar to a marriage in jest considering that the parties only
entered into the marriage for the acquisition of American citizenship in exchange of
$2,000.00. They never intended to enter into a marriage contract and never
intended to live as husband and wife or build a family.
real and valid marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete understanding of the
legal tie that would be created between them, since it was that precise legal tie
which was necessary to accomplish their goal.”
The court also explained that “There is no law that declares a marriage void if it is
entered into for purposes other than what the Constitution or law declares, such as
the acquisition of foreign citizenship. Therefore, so long as all the essential and
formal requisites prescribed by law are present, and it is not void or voidable under
the grounds provided by law, it shall be declared valid.”
“No less than our Constitution declares that marriage, as an in violable social
institution, is the foundation of the family and shall be protected by the State. It
must, therefore, be safeguarded from the whims and caprices of the contracting
parties. This Court cannot leave the impression that marriage may easily be
entered into when it suits the needs of the parties, and just as easily nullified when
no longer needed.”

The OSG then elevate the case to the Supreme Court

ISSUE: Whether or not the marriage of Albios and Fringer be declared null and void.

RULING:

No, respondent’s marriage is not void.

The court said:

“Based on the above, consent was not lacking between Albios and Fringer. In fact,
there was real consent because it was not vitiated nor rendered defective by any
vice of consent. Their consent was also conscious and intelligent as they
understood the nature and the beneficial and inconvenient consequences of their
marriage, as nothing impaired their ability to do so. That their consent was freely
given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and
deliberately contracted the marriage. There was a clear intention to enter into a