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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

BERNARDITA R. MACARIOLA, complainant,


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

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge
Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of
Appeals, with "acts unbecoming a judge."

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

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

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

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


Case 3010, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court,


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

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

COMES NOW, the plaintiffs and the defendant in the above-entitled


case, to this Honorable Court respectfully submit the following Project
of Partition:

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

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters


along the eastern part of the lot shall be awarded likewise to
Bernardita R. Macariola;

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


Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters


along the western part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales;

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

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

WHEREFORE, it is respectfully prayed that the Project of Partition


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

Tacloban City, October 16, 1963.

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

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

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

SO ORDERED.

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

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

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

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

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


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

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

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their
respective shares and interest in Lot 1184-E to "The Traders Manufacturing and
Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the
corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan,
Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as
the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of
Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we
shall henceforth refer to as "TRADERS" were registered with the Securities and
Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6,
1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was
one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated
Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the
Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he
was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an
impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador
Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in
fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar;
and [4] that there was a culpable defiance of the law and utter disregard for ethics by respondent
Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on
October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this
case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and
recommendation. After hearing, the said Investigating Justice submitted her report dated May 27,
1971 recommending that respondent Judge should be reprimanded or warned in connection with the
first cause of action alleged in the complaint, and for the second cause of action, respondent should
be warned in case of a finding that he is prohibited under the law to engage in business. On the third
and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.

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

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was
directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now
Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a
decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

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

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

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias
B. Asuncion,

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


for moral damages;

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


for exemplary damages;

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


damages; and

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


Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA


VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs
of the deceased Gerardo Villasin;

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

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R.


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

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

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

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

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

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

Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:

xxx xxx xxx

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

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

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

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

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before
the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of
partition and the two orders approving the same, as well as the partition of the estate and the
subsequent conveyances, the same, however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from
Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in
Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963.
Therefore, the property was no longer subject of litigation.

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

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one
year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the
project of partition, and not during the pendency of the litigation, there was no violation of paragraph
5, Article 1491 of the New Civil Code.

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

And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of
the whole lot to "TRADERS" of which respondent was the President and his wife the
Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions


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

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing
that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot
1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a
respectable citizen, credible and sincere, and I believe him when he testified that he
bought Lot 1184-E in good faith and for valuable consideration from the Reyeses
without any intervention of, or previous understanding with Judge Asuncion (pp. 391-
394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the
project of partition although it was not signed by the parties, We quote with approval the findings of
the Investigating Justice, as follows:

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

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

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


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

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


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

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

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

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

II

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

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


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

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

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in
a determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of
Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the
nature of a political law as it regulates the relationship between the government and certain public
officers and employees, like justices and judges.

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

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

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

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

By well-settled public law, upon the cession of territory by one nation to another,
either following a conquest or otherwise, ... those laws which are political in their
nature and pertain to the prerogatives of the former government immediately cease
upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).

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

On such transfer (by cession) of territory, it has never been held that
the relations of the inhabitants with each other undergo any change.
Their relations with their former sovereign are dissolved, and new
relations are created between them and the government which has
acquired their territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the law which
may be denominated political, is necessarily changed, although that
which regulates the intercourse and general conduct of individuals,
remains in force, until altered by the newly- created power of the
State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general
principle of the public law that on acquisition of territory the previous political relations of the ceded
region are totally abrogated. "

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

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides
that:

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


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

xxx xxx xxx

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


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

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

It does not appear also from the records that the aforesaid corporation gained any undue advantage
in its business operations by reason of respondent's financial involvement in it, or that the
corporation benefited in one way or another in any case filed by or against it in court. It is undisputed
that there was no case filed in the different branches of the Court of First Instance of Leyte in which
the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita
R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.,"wherein the complainant herein sought to
recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No.
4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having
disposed of his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no provision in
both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly
prohibiting members of the Judiciary from engaging or having interest in any lawful business.

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

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is,
as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to
America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by
judges of a property in litigation before the court within whose jurisdiction they perform their duties,
cannot apply to respondent Judge because the sale of the lot in question to him took place after the
finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of
partition; hence, the property was no longer subject of litigation.

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

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

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by
Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7,
Article X, 1973 Constitution.

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

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can
discipline judges of inferior courts as well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ...
violation of the existing Civil Service Law and rules or of reasonable office regulations, or in the
interest of the service, remove any subordinate officer or employee from the service, demote him in
rank, suspend him for not more than one year without pay or fine him in an amount not exceeding
six months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action
against civil service officers and employees.

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

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

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

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

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

III

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

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

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

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


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

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

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS


HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ.,
concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.


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.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),


MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.

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 proponent 1 and the main sponsor 2 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;

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 X 9 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.

(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 asinitiative 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);

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
mentionsinitiative 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 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 Arevision 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 signedby 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.

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.
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.

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 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.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the 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.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS


TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT
SYSTEM.

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:

Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional action.

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 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.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That
section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(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 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.

xxx xxx xxx

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

xxx xxx xxx

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?

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.

xxx xxx xxx

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, 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 1986.41 Thereafter, 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.
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 forinitiative 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 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 —

xxx xxx xxx

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 localinitiative 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;

(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, 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 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.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ.,
concur.

Padilla, J., took no part.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it
orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the
people's initiative to amend the Constitution. I likewise submit that the petition with respect to the
Pedrosas has no leg to stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for
the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise,
intent is the essence of the law, the spirit which gives life to its enactment. 2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative
to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the
history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate
Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception
Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body."
Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the
Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend
the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional
basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced
by the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between
the Legislature and the Executive departments. Transcending changes in the
exercise of legislative power is the declaration in the Philippine Constitution that the
Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system
of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill on
referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the
people the power to directly propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed
on Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government
Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power of initiative and referendum. He
added that the holding of barangay plebiscites and referendum are likewise provided
in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the
instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are
Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative
and referendum apply is also without limitation, except for emergency measures,
which are likewise incorporated in House Bill No. 21505. He added that the
procedure provided by the Bill from the filing of the petition, the requirements of a
certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he said,
is a tried and tested system in other jurisdictions, and the Bill is patterned after
American experience.

He further explained that the bill has only 12 sections, and recalled that the
Constitutional Commissioners saw the system of the initiative and referendum as an
instrument which can be used should the legislature show itself to be indifferent to
the needs of the people. This is the reason, he claimed, why now is an opportune
time to pass the Bill even as he noted the felt necessity of the times to pass laws
which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as
advocated in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for
the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by
Congress; and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections
(COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of
plebiscite by presenting a petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of registered voters at which
every legislative district is represented by at least three percent of the registered
voters thereof. Within 30 days after receipt of the petition, the COMELEC shall
determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required


number of votes, it shall become effective 15 days following the completion of its
publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to approve
House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech
together with the footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the
Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador
Escudero III in his sponsorship remarks, viz: 7
xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular
democracy ever since, especially in the so-called parliament of the streets. A
substantial segment of the population feels, he said, that the form of democracy is
there, but not the reality or substance of it because of the increasingly elitist
approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten
the politization of the citizenry, aid the government in forming an enlightened public
opinion, and produce more responsive legislation. The passage of the Bill will also
give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed
out in a Bicameral Conference Committee. 8 In the meeting of the Committee on June 6,
1989, 9 the members agreed that the two (2) bills should be consolidated and that the
consolidated version should include people's initiative to amend the Constitution as contemplated
by House Bill No. 21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because


this is new in our political system, the Senate decided on a more
cautious approach and limiting it only to the local government units
because even with that stage where . . . at least this has been quite
popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon.
And, second, we consider also that it is only fair that the local
legislative body should be given a chance to adopt the legislation bill
proposed, right? Iyong sinasabing indirect system of initiative. If after
all, the local legislative assembly or body is willing to adopt it in full
or in toto, there ought to be any reason for initiative, ano for initiative.
And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people,
thru initiative, cannot enact any ordinance that is beyond the scope of
authority of the local legislative body, otherwise, my God, mag-
aassume sila ng power that is broader and greater than the grant of
legislative power to the Sanggunians. And Number 5, because of
that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare
it null and void for want of authority. Ha, di ba? I mean it is beyond
powers of local government units to enact. Iyon ang main essence
namin, so we concentrated on that. And that is why . . . so ang sa
inyo naman includes iyon sa Constitution, amendment to the
Constitution eh . . . national laws. Sa amin, if you insist on that,
alright, although we feel na it will in effect become a dead statute.
Alright, and we can agree, we can agree. So ang mangyayari dito,
and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is
the House bill. Logically it should be ours sapagkat una iyong sa amin
eh. It is one of the first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay.
____ gagawin na natin na consolidation of both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill


No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman
Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the House Representative
states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines


Sur is recognized.

MR. ROCO. On the Conference Committee Report on the


disagreeing provisions between Senate Bill No. 21505 which refers to
the system providing for the initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House
Representatives correctly provided for initiative and referendum on
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the


Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few
questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please


proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two


provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and


referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance


with the provision of the Constitution whereby it mandates this
Congress to enact the enabling law, so that we shall have a system
which can be done every five years. Is it five years in the provision of
the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional


amendments in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.

MR. ALBANO. Therefore, basically, there was no substantial


difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I
said earlier, ironically was about local, provincial and municipal
legislation.

MR. ALBANO. And the two bills were consolidated?


MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to
amend the Constitution, it is our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must be enforced even if it may
not be consistent with the strict letter of the law and this ruling is as old as the mountain. We
have also held that where a law is susceptible of more than one interpretation, that
interpretation which will most tend to effectuate the manifest intent of the legislature will be
adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to
implement the people's initiative to amend the Constitution. To be sure, we need not torture the text
of said law to reach the conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of 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)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or
rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) 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, of which every legislative
district must be represented by at least threeper centum (3%) of the registered voters therein." It also
states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to
defeat its intent which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be
expected for laws are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But
the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can
be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical
expressions, that is, such expressions and words will be construed as carrying the meaning the
legislature intended that they bear, although such a construction necessitates a departure from the literal
meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium.
Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee
Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to
amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No.
6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate
such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can
this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor
General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine
whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to
fill details in the execution, enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate — and (b) to fix standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in the
performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would
be no means to determine, with reasonable certainty, whether the delegate has
acted within or beyond the scope of his authority. Hence, he could thereby arrogate
upon himself the power, not only to make the law, but, also — and this is worse — to
unmake it, by adopting measures inconsistent with the end sought to be attained by
the Act of Congress, thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently, undermining the very foundation
of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the enforcement
of a law. It does not enunciate any policy to be carried out or implemented by the
President. Neither does it give a standard sufficiently precise to avoid the evil effects
above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, section 2
spells out the policy of the law; viz: "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." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing
of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the
amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure,
these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out
the boundaries of the delegates' authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is
to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show
that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's
initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the
rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is


possible for the legislature to set forth certain procedures to carry out
the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

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. 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.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In
response to questions of Commissioner Romulo, Davide explained the extent of the power of the
legislature over the process: it could for instance, prescribe the 'proper form before (the
amendment) is submitted to the people,' it could authorize another body to check the proper form.
It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of
petitioners. Davide concluded: '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.'" Quite clearly, the prohibition against the legislature is to impair
the substantive right of the people to initiate amendments to the Constitution. It is not, however,
prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it
to another body like the COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their
promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly
pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders
of the military commander are to conform, or require findings to be made as a
prerequisite to any order. But the Executive Order, the Proclamations and the statute
are not to be read in isolation from each other. They were parts of a single program
and must be judged as such. The Act of March 21, 1942, was an adoption by
Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity
of protecting military resources in the designated areas against espionage and
sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20
look at the law cannot miss them. They were not written by our legislators in invisible ink.
The policy and standards can also be found in no less than section 2, Article XVII of the
Constitution on Amendments or Revisions. There is thus no reason to hold that the
standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as
adequate more general standards such as "simplicity and dignity," 30 "public interest," 31"public
welfare," 32 "interest of law and order," 33 "justice and equity," 34 "adequate and efficient
instruction," 35"public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local
consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity,
economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal
and coordinate branch of government, should counsel this Court to refrain from refusing to
effectuate laws unless they are clearly unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas.
The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at
bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by
the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition,
the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against
the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the
signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the
Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions
for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their
solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may likewise be directly
proposed by the people through initiative. . ." This right springs from the principle proclaimed in
section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides
in the people and all government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute but a particle of our
sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and
their organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the establishment
of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution
strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process of our people.
The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a
question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an
exercise of their freedom of speech and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. For this
reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to
amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To
be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the
predicate of progress and we should not fear change. Mankind has long recognized the truism that
the only constant in life is change and so should the majority.
IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987
Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article
of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to
check excesses of government and that any effort to trivialize the effectiveness of people's initiatives
ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and
doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43Just a few days
ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City
involving the mayor and ordered that he submits his right to continue in office to the judgment of the
tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque
abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in
full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting
back the flowering of people empowerment. More important, the Court cannot seal the lips of people who
are pro-change but not those who are anti-change without concerting the debate on charter change into a
sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy
nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. What is essential at this time
would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking
through a people initiative certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed amendment under this method,
is explicit. Section 2, Article XVII, thereof 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.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives,
the petition would rather have much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to instruct
"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.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made
permanent under theponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves.
The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has
taught us that the vitality of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only have its true meaning
if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the
Court, I most respectfully submit, to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on
right of the people to directly propose constitutional amendments. Any opinion or view formulated by
the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued
by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for
constitutional amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and
well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more
significance to this declaration of principle for the people are now vested with power not only to propose,
enact or reject any act or law passed by Congress or by the local legislative body, but to propose
amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989
enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my
mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their
allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication. 3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9
of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph
(b) thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole. 5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to
propose amendments to the constitution or to propose and enact legislations through an election
called for the purpose". 6The same section, in enumerating the three systems of initiative, included an
"initiative on the constitution which refers to a petition proposing amendments to the
constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an
initiative on the constitution is approved or rejected by the people" And as to the material requirements for
an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the registered voters as signatories, of which
every legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative.
"A legal provision", the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or
having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the
deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference


Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:

MR. ROCO. On the Conference Committee Report on the


disagreeing provisions between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House of
Representatives correctly provided for initiative and referendum an
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the


Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few


questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.


THE SPEAKER PRO TEMPORE. The Gentleman will please
proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two


provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and


referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance


with the provision of the Constitution to enact the enabling law, so
that we shall have a system which can be done every five years. Is it
five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional


amendments to the 1987 Constitution, it is every five years." (Id.
[Journal and Record of the House of Representatives], Vol. VIII, 8
June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279,
292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws. 9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other
construction as what petitioners foist upon the Court constitute a betrayal of the intent and
spirit behind the enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any
action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996
[Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional requirement.

Thus:

A 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, of which every
legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the Constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence,
therefore, of an appropriate petition before the Commission on Elections, any determination
of whether private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents'
petition for initiative before public respondent Commission on Elections until the same be supported
by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the
"initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through
initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required
number of signatures — in this case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district — no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most respectfully from the majority's two other
rulings. Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be
amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by
all the voters of the country acting together. This decision will effectively but unnecessarily curtail,
nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

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.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice
Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative,
sufficiently implements the right of the people to initiate amendments to the Constitution. Such views,
which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en
banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for
initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the
exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to
trivialize the effectiveness of people's initiatives ought to be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of
initiative on the Constitution and initiative and referendum on national and local laws," not by the
incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac,
Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission,
and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort
to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa


Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate." 5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as their final weapons against political excesses, opportunism, inaction,
oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and
abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining
order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it
orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the
people's initiative to amend the Constitution. I likewise submit that the petition with respect to the
Pedrosas has no leg to stand on and should be dismissed. With due respect:
I

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for
the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise,
intent is the essence of the law, the spirit which gives life to its enactment. 2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative
to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the
history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate
Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception
Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body."
Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the
Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend
the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional
basis of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced
by the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between
the Legislature and the Executive departments. Transcending changes in the
exercise of legislative power is the declaration in the Philippine Constitution that the
Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system
of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill on
referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the
people the power to directly propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total number of registered voters.
Stating that House Bill No. 21505 is the Committee's response to the duty imposed
on Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government
Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power of initiative and referendum. He
added that the holding of barangay plebiscites and referendum are likewise provided
in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the
instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are
Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative
and referendum apply is also without limitation, except for emergency measures,
which are likewise incorporated in House Bill No. 21505. He added that the
procedure provided by the Bill from the filing of the petition, the requirements of a
certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he said,
is a tried and tested system in other jurisdictions, and the Bill is patterned after
American experience.

He further explained that the bill has only 12 sections, and recalled that the
Constitutional Commissioners saw the system of the initiative and referendum as an
instrument which can be used should the legislature show itself to be indifferent to
the needs of the people. This is the reason, he claimed, why now is an opportune
time to pass the Bill even as he noted the felt necessity of the times to pass laws
which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as
advocated in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for
the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by
Congress; and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections
(COMELEC) to define rules and regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of
plebiscite by presenting a petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of registered voters at which
every legislative district is represented by at least three percent of the registered
voters thereof. Within 30 days after receipt of the petition, the COMELEC shall
determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required


number of votes, it shall become effective 15 days following the completion of its
publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to approve
House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech
together with the footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the
Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador
Escudero III in his sponsorship remarks, viz: 7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular
democracy ever since, especially in the so-called parliament of the streets. A
substantial segment of the population feels, he said, that the form of democracy is
there, but not the reality or substance of it because of the increasingly elitist
approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten
the politization of the citizenry, aid the government in forming an enlightened public
opinion, and produce more responsive legislation. The passage of the Bill will also
give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed
out in a Bicameral Conference Committee. 8 In the meeting of the Committee on June 6,
1989, 9 the members agreed that the two (2) bills should be consolidated and that the
consolidated version should include people's initiative to amend the Constitution as contemplated
by House Bill No. 21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because


this is new in our political system, the Senate decided on a more
cautious approach and limiting it only to the local government units
because even with that stage where . . . at least this has been quite
popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon.
And, second, we consider also that it is only fair that the local
legislative body should be given a chance to adopt the legislation bill
proposed, right? Iyong sinasabing indirect system of initiative. If after
all, the local legislative assembly or body is willing to adopt it in full
or in toto, there ought to be any reason for initiative, ano for initiative.
And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people,
thru initiative, cannot enact any ordinance that is beyond the scope of
authority of the local legislative body, otherwise, my God, mag-
aassume sila ng power that is broader and greater than the grant of
legislative power to the Sanggunians. And Number 5, because of
that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare
it null and void for want of authority. Ha, di ba? I mean it is beyond
powers of local government units to enact. Iyon ang main essence
namin, so we concentrated on that. And that is why . . . so ang sa
inyo naman includes iyon sa Constitution, amendment to the
Constitution eh . . . national laws. Sa amin, if you insist on that,
alright, although we feel na it will in effect become a dead statute.
Alright, and we can agree, we can agree. So ang mangyayari dito,
and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is
the House bill. Logically it should be ours sapagkat una iyong sa amin
eh. It is one of the first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay.
____ gagawin na natin na consolidation of both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill


No. so and so. 10
When the consolidated bill was presented to the House for approval, then Congressman
Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the House Representative
states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines


Sur is recognized.

MR. ROCO. On the Conference Committee Report on the


disagreeing provisions between Senate Bill No. 21505 which refers to
the system providing for the initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House
Representatives correctly provided for initiative and referendum on
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the


Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few


questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please


proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two


provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and


referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.


MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance


with the provision of the Constitution whereby it mandates this
Congress to enact the enabling law, so that we shall have a system
which can be done every five years. Is it five years in the provision of
the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional


amendments in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.

MR. ALBANO. Therefore, basically, there was no substantial


difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I
said earlier, ironically was about local, provincial and municipal
legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to
amend the Constitution, it is our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must be enforced even if it may
not be consistent with the strict letter of the law and this ruling is as old as the mountain. We
have also held that where a law is susceptible of more than one interpretation, that
interpretation which will most tend to effectuate the manifest intent of the legislature will be
adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to
implement the people's initiative to amend the Constitution. To be sure, we need not torture the text
of said law to reach the conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of 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)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or
rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) 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, of which every legislative
district must be represented by at least threeper centum (3%) of the registered voters therein." It also
states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to
defeat its intent which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be
expected for laws are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But
the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can
be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical
expressions, that is, such expressions and words will be construed as carrying the meaning the
legislature intended that they bear, although such a construction necessitates a departure from the literal
meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium.
Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15
II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee
Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to
amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No.
6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate
such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can
this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor
General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine
whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to
fill details in the execution, enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate — and (b) to fix standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in the
performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would
be no means to determine, with reasonable certainty, whether the delegate has
acted within or beyond the scope of his authority. Hence, he could thereby arrogate
upon himself the power, not only to make the law, but, also — and this is worse — to
unmake it, by adopting measures inconsistent with the end sought to be attained by
the Act of Congress, thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently, undermining the very foundation
of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the enforcement
of a law. It does not enunciate any policy to be carried out or implemented by the
President. Neither does it give a standard sufficiently precise to avoid the evil effects
above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, section 2
spells out the policy of the law; viz: "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." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing
of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the
amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure,
these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out
the boundaries of the delegates' authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is
to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show
that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's
initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the
rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is


possible for the legislature to set forth certain procedures to carry out
the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

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. 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.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In
response to questions of Commissioner Romulo, Davide explained the extent of the power of the
legislature over the process: it could for instance, prescribe the 'proper form before (the
amendment) is submitted to the people,' it could authorize another body to check the proper form.
It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of
petitioners. Davide concluded: '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.'" Quite clearly, the prohibition against the legislature is to impair
the substantive right of the people to initiate amendments to the Constitution. It is not, however,
prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it
to another body like the COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their
promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly
pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:

xxx xxx xxx


It is true that the Act does not in terms establish a particular standard to which orders
of the military commander are to conform, or require findings to be made as a
prerequisite to any order. But the Executive Order, the Proclamations and the statute
are not to be read in isolation from each other. They were parts of a single program
and must be judged as such. The Act of March 21, 1942, was an adoption by
Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity
of protecting military resources in the designated areas against espionage and
sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20
look at the law cannot miss them. They were not written by our legislators in invisible ink.
The policy and standards can also be found in no less than section 2, Article XVII of the
Constitution on Amendments or Revisions. There is thus no reason to hold that the
standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as
adequate more general standards such as "simplicity and dignity," 30 "public interest," 31"public
welfare," 32 "interest of law and order," 33 "justice and equity," 34 "adequate and efficient
instruction," 35"public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local
consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity,
economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal
and coordinate branch of government, should counsel this Court to refrain from refusing to
effectuate laws unless they are clearly unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas.
The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at
bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by
the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition,
the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against
the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the
signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the
Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions
for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their
solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may likewise be directly
proposed by the people through initiative. . ." This right springs from the principle proclaimed in
section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides
in the people and all government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute but a particle of our
sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and
their organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the establishment
of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution
strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process of our people.
The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a
question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an
exercise of their freedom of speech and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. For this
reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to
amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To
be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the
predicate of progress and we should not fear change. Mankind has long recognized the truism that
the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987
Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article
of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to
check excesses of government and that any effort to trivialize the effectiveness of people's initiatives
ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and
doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43Just a few days
ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City
involving the mayor and ordered that he submits his right to continue in office to the judgment of the
tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque
abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in
full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting
back the flowering of people empowerment. More important, the Court cannot seal the lips of people who
are pro-change but not those who are anti-change without concerting the debate on charter change into a
sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy
nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.


It does seem to me that there is no real exigency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. What is essential at this time
would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking
through a people initiative certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed amendment under this method,
is explicit. Section 2, Article XVII, thereof 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.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives,
the petition would rather have much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to instruct
"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.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made
permanent under theponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves.
The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has
taught us that the vitality of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only have its true meaning
if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the
Court, I most respectfully submit, to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on
right of the people to directly propose constitutional amendments. Any opinion or view formulated by
the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued
by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for
constitutional amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and
well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more
significance to this declaration of principle for the people are now vested with power not only to propose,
enact or reject any act or law passed by Congress or by the local legislative body, but to propose
amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989
enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my
mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their
allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication. 3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9
of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph
(b) thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole. 5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to
propose amendments to the constitution or to propose and enact legislations through an election
called for the purpose". 6The same section, in enumerating the three systems of initiative, included an
"initiative on the constitution which refers to a petition proposing amendments to the
constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an
initiative on the constitution is approved or rejected by the people" And as to the material requirements for
an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the registered voters as signatories, of which
every legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative.
"A legal provision", the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or
having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the
deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference


Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:
MR. ROCO. On the Conference Committee Report on the
disagreeing provisions between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House of
Representatives correctly provided for initiative and referendum an
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the


Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few


questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please


proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two


provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and


referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.


MR. ALBANO. And this initiative and referendum is in consonance
with the provision of the Constitution to enact the enabling law, so
that we shall have a system which can be done every five years. Is it
five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional


amendments to the 1987 Constitution, it is every five years." (Id.
[Journal and Record of the House of Representatives], Vol. VIII, 8
June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279,
292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws. 9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other
construction as what petitioners foist upon the Court constitute a betrayal of the intent and
spirit behind the enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any
action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996
[Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional requirement.

Thus:

A 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, of which every
legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the Constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence,
therefore, of an appropriate petition before the Commission on Elections, any determination
of whether private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents'
petition for initiative before public respondent Commission on Elections until the same be supported
by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.


PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the
"initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through
initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required
number of signatures — in this case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district — no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most respectfully from the majority's two other
rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be
amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by
all the voters of the country acting together. This decision will effectively but unnecessarily curtail,
nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

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.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice
Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative,
sufficiently implements the right of the people to initiate amendments to the Constitution. Such views,
which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en
banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for
initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the
exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to
trivialize the effectiveness of people's initiatives ought to be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of
initiative on the Constitution and initiative and referendum on national and local laws," not by the
incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac,
Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission,
and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort
to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa


Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate." 5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as their final weapons against political excesses, opportunism, inaction,
oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and
abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining
order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Footnotes

1 Commissioner Blas Ople.

2 Commissioner Jose Suarez.

3 I Record of the Constitutional Commission, 371, 378.

4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the
1973 Constitution.

5 Annex "A" of Petition, Rollo, 15.

6 Later identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity.

7 These sections read:

Sec. 4. The term of office of the Senators shall be six years and shall commence,
unless otherwise provided by law, at noon on the thirtieth day of June next following
their election.

No Senator shall serve for more than two consecutive terms. Voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term of
three years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for the full term for
which he was elected.

8 The section reads:

Sec. 4. The President and the Vice-President shall be elected by direct vote of the
people for a term of six years which shall begin at noon on the thirtieth day of June
next following the day of the election and shall end at noon of the same date six
years thereafter. The President shall not be eligible for any reelection. No person
who has succeeded as President and has served as such for more than four years
shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary
renunciation of the office for any length or time shall not be considered as an
interruption in the continuity of the service for the full term for which he was elected.

9 The section reads:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.

10 Rollo, 19.

11 Annex "B" of Petition, Rollo, 25.

12 Order of 12 December 1996, Annex "B-1" of Petition, Rollo, 27.

13 Id.

14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA


333 [1976].

15 Rollo, 68.

16 Rollo, 100.

17 Rollo, 130.

18 A Member of the 1986 Constitutional Commission.

19 Section 26, Article II, Constitution.

20 Citing Commissioner Ople of the Constitutional Commission, I Record of the


Constitutional Commission, 405.

21 Rollo, 239.

22 Rollo, 304.

23 Rollo, 568.

24 These were submitted on the following dates:

(a) Private respondent Delfin — 31 January 1997 (Rollo, 429);


(b) Private respondents Alberto and Carmen Pedrosa — 10 February
1997 (Id., 446);

(c) Petitioners — 12 February 1997 (Id., 585);

(d) IBP — 12 February 1997 (Id., 476);

(e) Senator Roco — 12 February 1997 (Id., 606);

(f) DIK and MABINI — 12 February 1997 (Id., 465);

(g) COMELEC — 12 February 1997 (Id., 489);

(h) LABAN — 13 February 1997 (Id., 553).

25 Rollo, 594.

26 Annex "D" of Roco's Motion for Intervention in this case, Rollo, 184.

27 Rollo, 28.

28 232 SCRA 110, 134 [1994].

29 II The Constitution of the Republic of the Philippines, A Commentary 571 [1988].

30 I Record of the Constitutional Commission 370-371.

31 Id., 371.

32 Id., 386.

33 Id., 391-392. (Emphasis supplied).

34 Id., 386.

35 Id., 392.

36 Id., 398-399.

37 Id., 399. Emphasis supplied.

38 Id., 402-403.

39 Id., 401-402.

40 Id., 410.

41 Id., 412.
42 II Record of the Constitutional Commission 559-560.

43 The Congress originally appeared as The National Assembly. The change came
about as a logical consequence of the amended Committee Report No. 22 of the
Committee on Legislative which changed The National Assembly to "The Congress
of the Philippines" in view of the approval of the amendment to adopt the bicameral
system (II Record of the Constitutional Commission 102-105). The proposed new
Article on the Legislative Department was, after various amendments approved on
Second and Third Readings on 9 October 1986 (Id., 702-703)

44 V Record of the Constitutional Commission 806.

45 See footnote No. 42.

46 As Stated by Commissioner Bernas in his interpellation of Commissioner Suarez,


footnote 28.

47 Entitled "Initiative and Referendum Act of 1987," introduced by then


Congressmen Raul Roco, Raul del Mar and Narciso Monfort.

48 Entitled "An Act Implementing the Constitutional Provisions on Initiative and


Referendum and for Other Purposes," introduced by Congressmen Salvador
Escudero.

49 Entitled "An Act Providing for a System of Initiative and Referendum, and the
Exceptions Therefrom, Whereby People in Local Government Units Can Directly
Propose and Enact Resolutions and Ordinances or Approve or Reject Any Ordinance
or Resolution Passed By the Local Legislative Body," introduced by Senators
Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.

50 IV Record of the Senate, No. 143, pp. 1509-1510.

51 VIII Journal and Record of the House of Representatives, 957-961.

52 That section reads:

Sec. 1. Statement of Policy. The power of the people under a system of initiative and
referendum to directly propose and enact resolutions and ordinances or approve or
reject, in whole or in part, any ordinance or resolution passed by any local legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed.

53 It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as
approved on Third Reading, did not contain any subtitles.

54 If some confusion attended the preparation of the subtitles resulting in the leaving
out of the more important and paramount system of initiative on amendments to the
Constitution, it was because there was in the Bicameral Conference Committee an
initial agreement for the Senate panel to draft that portion on local initiative and for
the House of Representatives panel to draft that portion covering national initiative
and initiative on the Constitution; eventually, however, the Members thereof agreed
to leave the drafting of the consolidated bill to their staff. Thus:

CHAIRMAN GONZALES.

. . . All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging
basic nito, let us not discuss anymore kung alin ang magiging basic bill, ano, whether
it is the Senate Bill or whether it is the House Bill. Logically it should be ours
sapagkat una iyong sa amin, eh. It is one of the first bills approved by the Senate
kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pag-usapan. Now, if
you insist, really iyong features ng national at saka constitutional, okay. Pero
gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral
Conference Committee on 6 June 1989 submitted by Nora, R, pp. 1-4 — 1-5).

xxx xxx xxx

HON. ROCO. So how do we proceed from this? The staff will consolidate.

HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na
ang bahalang magconsult sa aming mga members na kung okay,

HON. ROCO. Within today?

HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo,
eh.

HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya
bukas and you are not objecting naman kayo naman ganoon din.

HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung
mga provisions naman namin wala sa inyo. (TSN, proceedings of Bicameral
Conference Committee of 6 June 1989, submitted by E.S. Bongon, pp. III-4 — III-5).

55 Sec. 5(a & c), Sec. 8, Section 9(a).

56 Sections 13, 14, 15 and 16.

57 It would thus appear that the Senate's "cautious approach" in the implementation
of the system of initiative as a mode of proposing amendments to the Constitution, as
expressed by Senator Gonzales in the course of his sponsorship of Senate Bill No.
17 in the Bicameral Conference Committee meeting and in his sponsorship of the
Committee's Report, might have insidiously haunted the preparation of the
consolidated version of Senate Bill No. 17 and House Bill No. 21505. In the first he
said:

Senate Bill No. 17 recognizes the initiatives and referendum are recent
innovations in our political system. And recognizing that, it has adopted a
cautious approach by: first, allowing them only when the local legislative body
had refused to act; second, not more frequently than once a year; and, third,
limiting them to the national level. (I Record of the Senate, No. 33, p. 871).
xxx xxx xxx

First, as I have said Mr. President, and I am saying for the nth time, that we
are introducing a novel and new system in politics. We have to adopt first
a cautious approach. We feel it is prudent and wise at this point in time, to
limit those powers that may be the subject of initiatives and referendum to
those exercisable or within the authority of the local government units. (Id., p.
880).

In the second he stated:

But at any rate, as I have said, because this is new in our political system,
the Senate decided on a more cautious approach and limiting it only to the
local general units. (TSN of the proceedings of the Bicameral Conference
Committee on 6 June 1989, submitted by stenographer Nora R, pp. 1-2 to 1-
3).

In the last he declared:

The initiatives and referendum are new tools of democracy; therefore, we have
decided to becautious in our approach. Hence, 1) we limited initiative and
referendum to the local government units; 2) that initiative can only be exercised if
the local legislative cannot be exercised more frequently that once every year. (IV
Records of the Senate, No. 143, pp. 15-9-1510).

58 Section 20, RA. No. 6735.

59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political


Law 86 [1996] (hereafter CRUZ).

60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.

61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].

62 Edu v. Ericta, 35 SCRA 481,497 [1970].

63 Sec. 7, COMELEC Resolution No. 2300.

64 Sec. 28, id.

65 Sec. 29, id.

66 Sec. 30, id.

PUNO, J., concurring and dissenting::

1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing, inter alia, US v. Tamparong
31 Phil. 321; Hernani v. Export Control Committee, 100 Phil. 973; People v.
Purisima, 86 SCRA 542.
2 Ibid, citing Torres v. Limjap, 56 Phil. 141.

3 Prepared and sponsored by the House Committee on Suffrage and Electoral


Reforms on the basis of H.B. No. 497 introduced by Congressmen Raul Roco, Raul
del Mar and Narciso Monfort and H.B. No. 988 introduced by Congressman Salvador
Escudero.

4 Introduced by Senators Neptali Gonzales, Alberto Romulo, Aquilino Pimentel, Jr.,


and Jose Lina, Jr.

5 It was entitled "An Act Providing a System of Initiative and Referendum and
Appropriating Funds therefor.

6 Journal No. 85, February 14, 1989, p. 121.

7 Ibid.

8 The Senate Committee was chaired by Senator Neptali Gonzales with Senators
Agapito Aquino and John Osmena as members. The House Committee was chaired
by Congressman Magdaleno M. Palacol with Congressmen Raul Roco, Salvador H.
Escudero III and Joaquin Chipeco, Jr., as members.

9 Held at Constancia Room, Ciudad Fernandina, Greenhills, San Juan, Metro


Manila.

10 See Compliance submitted by intervenor Roco dated January 28, 1997.

11 Record No. 137, June 8, 1989, pp. 960-961.

12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); US v. Navarro, 19 Phil


134 (1911).

13 Francisco, Statutory Construction, 3rd ed., (1968) pp. 145-146 citing Crawford,
Statutory Construction, pp. 337-338.

14 Black, Handbook on the Construction and Interpretation of the Laws (2nd ed), pp.
258-259. See also Commissioner of Custom v. Relunia, 105 Phil 875 (1959); People
v. Yabut, 58 Phil 499 (1933).

15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on Statutes, p. 237.

16 Entitled In re: Rules and Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on National and Local Laws and
promulgated on January 16, 1991 by the COMELEC with Commissioner Haydee B.
Yorac as Acting Chairperson and Commissioners Alfredo E. Abueg, Jr., Leopoldo L.
Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao.

17 15 SCRA 569.

18 Sec. 5(b), R.A. No. 6735.


19 Sec. 5(b), R.A. No. 6735.

20 Sec. 7, R.A. No. 6735.

21 Sec. 9(b), R.A. No. 6735.

22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of the Constitution.

23 Sec. 9(b), R.A. No. 6735.

24 Sec. 10, R.A. No. 6735.

25 Cruz, Philippine Political Law, 1995 ed., p. 98.

26 See July 8, 1986 Debates of the Concom, p. 399.

27 1995 ed., p. 1207.

28 Cruz, op cit., p. 99.

29 320 US 99.

30 Balbuena v. Secretary of Education, 110 Phil 150 (1910).

31 People v. Rosenthal, 68 Phil 328 (1939).

32 Calalang v. Williams, 70 Phil 726 (1940).

33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919).

34 International Hardwood v. Pangil Federation of Labor, 70 Phil 602 (1940).

35 Phil. Association of Colleges and Universities v. Secretary of Education, 97 Phil


806 (1955).

36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88 SCRA 195 (1979).

37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan Leyte, 69 SCRA 460 (1976).

38 Maceda v. Macaraig, 197 SCRA 771 (1991).

39 Osmena v. Orbos, 220 SCRA 703 (1993).

40 Chiongbian v. Orbos, 245 SCRA 253 (1995).

41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5, 1993.

42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230, September 30, 1994.
43 Subic Bay Metropolitan Authority v. COMELEC, et al., G.R. No. 125416,
September 26, 1996.

44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March 11, 1997.

FRANCISCO, J., concurring and dissenting:

1 Article II, Section 1, 1987 Constitution.

2 Article VI, Section 32, and Article XVII, Section 2, 1987 Constitution.

3 Petition, p. 5.

4 Paras v. Commission on Elections, G.R. No. 123619, December 4, 1996.

5 Tamayo v. Gsell, 35 Phil. 953, 980.

6 Section 3 (a), Republic Act No 6735.

7 Section 3(a) [a.1], Republic Act No 6735.

8 Uytengsu v. Republic, 95 Phil. 890, 893

9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-16.

PANGANIBAN, J., concurring and dissenting:

1 Apart from its text on "national initiative" which could be used by analogy, RA 6735
contains sufficient provisions covering initiative on the Constitution, which are clear
enough and speak for themselves, like:

Sec. 2. Statement of 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 resolution passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed.

Sec. 3. Definition of Terms. — For purposes of this Act, the following terms shall
mean:

(a) "Initiative" is the power of the people to propose amendments to


the Constitution or to propose and enact legislation's through an
election called for the purpose.

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.

xxx xxx xxx

(e) "Plebiscite" is the electoral process by which an initiative on the


Constitution is approved or rejected by the people

(f) "Petition" is the written instrument containing the proposition and


the required number of signatories. It shall be in a form to be
determined by and submitted to the Commission on Elections,
hereinafter referred to as the Commission

xxx xxx xxx

Sec. 5 Requirements. — . . .

(b) A 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, of which every legislative district must be
represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution and
only once every five (5) years thereafter.

Sec. 9. Effectivity of Initiative or Referendum Proposition. —

xxx xxx xxx

(b) The proposition in an initiative on the Constitution approved by a


majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.

xxx xxx xxx

(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 herein;


c.5 signatures of the petitioners or registered voters;
and

c.6 an abstract or summary proposition in not more


than one hundred (100) words which shall be legibly
written or printed at the top of every page of the
petition.

xxx xxx xxx

Sec. 19. Applicability of the Omnibus Election Code. — The Omnibus Election Code
and other election laws, not inconsistent with the provisions of this Act, shall apply to
all initiatives and referenda.

Sec. 20. Rules and Regulations. — The Commission is hereby empowered to


promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act. (Emphasis supplied)

2 G.R. No. 125416, September 26, 1996.

3 237 SCRA 279, 282, September 30, 1994.

4 Sec. 20, R.A. 6735.

5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655 (1929).
Republic of the Philippines
SUPREME COURT
Manila

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.

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

ALTERNATIVE LAW GROUPS, INC., Intervenor.

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

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,


BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

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

ATTY. PETE QUIRINO QUADRA, Intervenor.

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

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA


represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by
its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR.
REGINALD PAMUGAS of Health Action for Human Rights, Intervenors.

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

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL,Intervenors.

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

ARTURO M. DE CASTRO, Intervenor.

x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

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

LUWALHATI RICASA ANTONINO, Intervenor.

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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS


C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.

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

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.

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

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.


VICTORINO F. BALAIS, Intervenors.

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

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,


JR., Intervenor.

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

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

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

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.

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

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE


CHAPTERS, Intervenors.

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

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.


OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.

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

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.


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

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.

DECISION

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 twelveper 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:

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."

Various groups and individuals sought intervention, filing pleadings supporting or opposing the
Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC
committed grave abuse of discretion in relying 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 challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the Lambino Group's compliance with
the minimum requirement for the percentage of voters supporting an initiative petition under Section
2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not
mere 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.

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After
receiving the parties' memoranda, the Court considered the case submitted for resolution.

The Issues

The petitions raise the following 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;

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to implement the initiative clause on
proposals to amend the Constitution; and

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the
Lambino Group's petition.

The Ruling of the Court

There is no merit to the petition.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present
petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the
basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution. This section states:

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. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

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 this constitutional
amendment.

MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
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 thatthe 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, inCapezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared:

[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:

Province: City/Municipality: No. of


Legislative District: Barangay:
Verified

Signatures:

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.

Precinct Name Address Birthdate Signature Verification


Number
Last Name, First MM/DD/YY
Name, M.I.
1
2
3
4
5
6
7
8
9
10
_________________ _________________ __________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

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 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)

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 arevastly 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 changeattached 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.

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 Secundum pulls 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.

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 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 theexclusion 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 fundamental law,
the writing of the text of the proposed amendments cannot behidden 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

xxxx

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 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.

xxxx

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

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.

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.

xxxx

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 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.

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 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 withunicameral 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, 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 inSantiago 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.

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.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,


Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr.,
JJ., concur.

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED


VOTERS V. COMMISSION ON ELECTIONS ET AL.

SEPARATE CONCURRING OPINION

PANGANIBAN, CJ.:

Without the rule of law, there can be no lasting prosperity and certainly no
liberty.

Beverley McLachlin 1
Chief Justice of Canada

After a deep reflection on the issues raised and a careful evaluation of the parties' respective
arguments -- both oral and written -- as well as the enlightened and enlightening Opinions submitted
by my esteemed colleagues, I am fully convinced that the present Petition must be dismissed.

I write, however, to show that my present disposition is completely consistent with my previous
Opinions and votes on the two extant Supreme Court cases involving an initiative to change the
Constitution.

In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and
Comelec Resolution 2300 provide more than sufficient

__________________
'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.'

"With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to
relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we
should not thereby preempt any future effort to exercise the right of initiative correctly and
judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a
ban against its proper use. Indeed, there is a right way to do the right thing at the right time
and for the right reason.

Taken Together and Interpreted Properly,


the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives

"While R.A. 6735 may not be a perfect law, it was — as the majority openly concedes —
intended by the legislature to cover and, I respectfully submit, it contains enough provisions
to effectuate an initiative on the Constitution. I completely agree with the inspired and
inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that
RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate
amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on,
are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay
Metropolitan Authority vs. Commission on Elections, that "provisions for initiative . . . are (to
be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise
by the voters of the rights granted thereby"; and in Garcia vs. Comelec, that any "effort to
trivialize the effectiveness of people's initiatives ought to be rejected."

"No law can completely and absolutely cover all administrative details. In recognition of this,
R.A. 6735 wisely empowered the Commission on Election "to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act." And pursuant
thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its
very words, was promulgated "to govern the conduct of initiative on the Constitution and
initiative and referendum on national and local laws," not by the incumbent Commission on
Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms.
Alfredo

authority to implement, effectuate and realize our people's power to amend the Constitution."

__________________

E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the
Commission, and thus we cannot ascribe any vile motive unto them, other than an honest,
sincere and exemplary effort to give life to a cherished right of our people.

"The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, R.A. 6735.
"I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide
more than sufficient authority to implement, effectuate and realize our people's power to
amend the Constitution.

Petitioner Delfin and the Pedrosa


Spouses Should Not Be Muzzled

"I am glad the majority decided to heed our plea to lift the temporary restraining order issued
by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses
Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as
against private respondents should not have been issued, in the first place. While I agree
that the Comelec should be stopped from using public funds and government resources to
help them gather signatures, I firmly believe that this Court has no power to restrain them
from exercising their right of initiative. The right to propose amendments to the Constitution is
really a species of the right of free speech and free assembly. And certainly, it would be
tyrannical and despotic to stop anyone from speaking freely and persuading others to
conform to his/her beliefs. As the eminent Voltaire once said, 'I may disagree with what you
say, but I will defend to the death your right to say it.' After all, freedom is not really for the
thought we agree with, but as Justice Holmes wrote, 'freedom for the thought that we hate.'

Epilogue

"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system.
All three are institutionalized legacies of the world-admired EDSA people power. Like
elections and plebiscites, they are hallowed expressions of popular sovereignty. They are
sacred democratic rights of our people to be used as

Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action
(PIRMA) v. Comelec,3 I joined the rest of the members of the Court in ruling "by a unanimous vote,
that no grave abuse of discretion could be attributed to the Comelec in dismissing the petition filed
by

__________________

Constitution x x x." While concededly, petitioners in this case were not direct parties
in Santiago, nonetheless the Court's injunction against the Comelec covered ANY petition,
not just the Delfin petition which was the immediate subject of said case. As a dissenter in
Santiago, I believed, and still do, that the majority gravely erred in rendering such a
sweeping injunction, but I cannot fault the Comelec for complying with the ruling even
if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was
directly enjoined by the highest Court of the land. It had no choice but to obey. Its
obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of action would have
constituted defiance of the Court and would have been struck down as grave abuse of
discretion and contumacious disregard of this Court's supremacy as the final arbiter of
justiciable controversies.

Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the
Constitution, and that whatever administrative details may have been omitted in said
law are satisfactorily provided by Comelec Resolution 2300. The promulgation of
Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which vests
upon the Comelec the power to "enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum and recall." The Omnibus
Election Code likewise empowers the electoral body to "promulgate rules and regulations
implementing the provisions of this Code or other laws which the Commission is required to
enforce and administer x x x." Finally and most relevantly, Section 20 of Ra 6735 specifically
authorizes Comelec "to promulgate rules and regulations as may be necessary to carry out
the purposes of this Act."

"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right
time and for the right reason." Let me explain further.

The Right Thing

"A people's initiative is direct democracy in action. It is the right thing that citizens may avail
themselves of to articulate their will. It is a new and treasured feature of the Filipino
constitutional system. Even the majority implicitly conceded its value and worth in our legal
firmament when it implored Congress "not to tarry any longer in complying with the
constitutional mandate to provide for implementation of the right (of initiative) of the people x
x x." Hence, in the en banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No.
125416, September 26, 1996], this Court unanimously held that "(l)ike elections, initiative
and referendum are powerful and valuable modes of expressing popular

PIRMA therein," since the Commission had "only complied" with the Santiago Decision.

__________________

sovereignty. And this Court as a matter of policy and doctrine will exert every effort to
nurture, protect and promote their legitimate exercise."

The Right Way

"From the outset, I have already maintained the view that "taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec
Resolution 2300 provide more than sufficient authority to implement, effectuate and realize
our people's power to amend the Constitution." Let me now demonstrate the adequacy of RA
6735 by outlining, in concrete terms, the steps to be taken – the right way – to amend the
Constitution through a people's initiative.

"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition
which shall contain the proposition and the required number of signatories. Under Sec. 5(c)
thereof, the petition shall state the following:

'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x;

c.2 the proposition [in full text];

c.3 the reason or reasons therefor [fully and clearly explained];


c.4 that it is not one of exceptions provided herein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.'

"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a
formal designation of the duly authorized representatives of the signatories.

"Being a constitutional requirement, the number of signatures becomes a condition


precedent to the filing of the petition, and is jurisdictional. Without such requisite signatures,
the Commission shall motu proprio reject the petition.

"Where the initiators have substantially complied with the above requirements, they may
thence file the petition with the Comelec which is tasked to determine the sufficiency thereof
and to verify the signatures on the basis of the registry list of voters, voters' affidavits and
voters' identification cards. In deciding whether the petition is sufficient, the Comelec shall
also determine if the proposition is proper for an initiative, i.e., if it consists of an amendment,
not a revision, of the Constitution. Any decision of the electoral body may be appealed to the
Supreme Court within thirty (30) days from notice.

I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution
2300 will notipso

__________________

"Within thirty (30) days from receipt of the petition, and after the determination of its
sufficiency, the Comelec shall publish the same in Filipino and English at least twice in
newspapers of general and local circulation, and set the date of the plebiscite. The conduct
of the plebiscite should not be earlier than sixty (60) days, but not later than ninety (90) days
after certification by the Comelec of the sufficiency of the petition. The proposition, if
approved by a majority of the votes cast in the plebiscite, becomes effective as of the day of
the plebiscite.

"From the foregoing, it should be clear that my position upholding the adequacy of RA 6735
and the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition
and automatically lead to a plebiscite to amend the Constitution. Far from it. Among others,
PIRMA must still satisfactorily hurdle the following searching issues:

1. Does the proposed change – the lifting of the term limits of elective officials -- constitute a
mere amendment and not a revision of the Constitution?

2. Which registry of voters will be used to verify the signatures in the petition? This question
is relevant considering that under RA 8189, the old registry of voters used in the 1995
national elections was voided after the barangay elections on May 12, 1997, while the new
list may be used starting only in the elections of May 1998.

3. Does the clamor for the proposed change in the Constitution really emanate from the
people who signed the petition for initiative? Or it is the beneficiaries of term extension who
are in fact orchestrating such move to advance their own political self-interest?
4. Are the six million signatures genuine and verifiable? Do they really belong to qualified
warm bodies comprising at least 12% of the registered voters nationwide, of which every
legislative district is represented by at least 3% of the registered voters therein?

"I shall expound on the third question in the next section, The Right Reason. Question Nos. 1
and 2 above, while important, are basically legal in character and can be determined by
argumentation and memoranda. However, Question No. 4 involves not only legal issues but
gargantuan hurdles of factual determination. This to my mind is the crucible, the litmus test,
of a people's petition for initiative. If herein petitioners, led by PIRMA, succeed in proving --
not just alleging -- that six million voters of this country indeed want to amend the
Constitution, what power on earth can stop them? Not this Court, not the Comelec, not even
the President or Congress.

facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution.
Far from it." I stressed that PIRMA must show the following, among others:

__________________

"It took only one million people to stage a peaceful revolution at EDSA, and the very rafters
and foundations of the martial law society trembled, quaked and crumbled. On the other
hand, PIRMA and its co-petitioners are claiming that they have gathered six million
signatures. If, as claimed by many, these six million signatures are fraudulent, then let them
be exposed and damned for all history in a signature-verification process conducted under
our open system of legal advocacy.

"More than anything else, it is the truth that I, as a member of this Court and as a citizen of
this country, would like to seek: Are these six million signatures real? By insisting on an
entirely new doctrine of statutory inadequacy, the majority effectively suppressed the quest
for that truth.

The Right Reason

"As mentioned, the third question that must be answered, even if the adequacy of RA 6735
and the validity of Comelec Resolution 2300 were upheld by the majority is: Does the clamor
for the proposed change to the Constitution really emanate from the people who signed the
petition for initiative? Or is it the beneficiaries of term extension who are in fact orchestrating
such move to advance their own political self-interests? In other words, is PIRMA's exercise
of the right to initiative being done in accordance with our Constitution and our laws? Is such
attempted exercise legitimate?

"In Garcia vs. Commission on Elections, we described initiative, along with referendum, as
the 'ultimate weapon of the people to negate government malfeasance and misfeasance.'
In Subic Bay, we specified that 'initiative is entirely the work of the electorate x x x a process
of lawmaking by the people themselves without the participation and against the wishes of
their elected representatives.' As ponente of Subic Bay, I stand foursquare on this
principle: The right to amend through initiative belongs only to the people – not to the
government and its minions. This principle finds clear support from utterances of many
constitutional commissioners like those quoted below:

"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the
National Assembly x x x [and] precisely a fallback position of the people in the event that
they are dissatisfied." -- Commissioner Ople
"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the
legislature is not as responsive to the vital and urgent needs of people." -- Commissioner
Gascon

(1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere
amendment and not a revision of the Constitution."

_________________

"[Initiative is an] extraordinary power given to the people [and] reserved for the people
[which] should not be frivolously resorted to." -- Commissioner Romulo

"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our
Charter itself provides them other ways of doing so, namely, by calling a constitutional
convention or constituting Congress into a constituent assembly. These are officialdom's
weapons. But initiative belongs to the people.

"In the present case, are PIRMA and its co-petitioners legitimate people's organizations or
are they merely fronts for incumbents who want to extend their terms? This is a factual
question which, unfortunately, cannot be judicially answered anymore, because the Supreme
Court majority ruled that the law that implements it, RA 6735, is inadequate or insufficient
insofar as initiatives to the Constitutions are concerned. With such ruling, the majority
effectively abrogated a constitutional right of our people. That is why in my Separate Opinion
in Santiago, I exclaimed that such precipitate action "is equivalent to burning the whole
house to exterminate the rats, and to killing the patient to relieve him of pain." I firmly
maintain that to defeat PIRMA's effort, there is no need to "burn" the constitutional right to
initiative. If PIRMA's exercise is not "legitimate," it can be exposed as such in the ways I
have discussed – short of abrogating the right itself. On the other hand, if PIRMA's position is
proven to be legitimate – if it hurdles the four issues I outlined earlier – by all means, we
should allow and encourage it. But the majority's theory of statutory inadequacy has pre-
empted – unnecessarily and invalidly, in my view – any judicial determination of such
legitimacy or illegitimacy. It has silenced the quest for truth into the interstices of the PIRMA
petition.

The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be proposed.
Section 2 of Article XVII precludes amendments "within five years following [its] ratification x
x x nor oftener than once every five years thereafter." Since its ratification, the 1987
Constitution has never been amended. Hence, the five-year prohibition is now inoperative
and amendments may theoretically be proposed at any time.

"Be that as it may, I believe – given the present circumstances – that there is no more time to
lift term limits to enable incumbents to seek reelection in the May 11, 1998 polls. Between
today and the next national

(2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm
bodies comprising at

__________________
elections, less than eight (8) months remain. Santiago, where the single issue of the
sufficiency of RA 6735 was resolved, took this Court three (3) months, and another two (2)
months to decide the motion for reconsideration. The instant case, where the same issue is
also raised by the petitioners, took two months, not counting a possible motion for
reconsideration. These time spans could not be abbreviated any further, because due
process requires that all parties be given sufficient time to file their pleadings.

"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 – as I believe
it should – and allow the Comelec to act on the PIRMA petition, such eight-month period will
not be enough to tackle the four weighty issues I mentioned earlier, considering that two of
them involve tedious factual questions. The Comelec's decision on any of these issues can
still be elevated to this Court for review, and reconsiderations on our decisions on each of
those issues may again be sought.

"Comelec's herculean task alone of verifying each of the six million signatures is enormously
time-consuming, considering that any person may question the authenticity of each and
every signature, initially before the election registrar, then before the Comelec on appeal and
finally, before this Court in a separate proceeding. Moreover, the plebiscite itself – assuming
such stage can be reached – may be scheduled only after sixty (60) but not more than ninety
(90) days, from the time the Comelec and this Court, on appeal, finally declare the petition to
be sufficient.

"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or


coalitions may start selecting their official candidates for President, Vice President and
Senators on November 27, 1997; the period for filing certificates of candidacy is from
January 11 to February 9, 1998; the election period and campaign for national officials start
on February 10, 1998, while the campaign period for other elective officials, on March 17,
1998. This means, by the time PIRMA's proposition is ready – if ever – for submission
directly to the voters at large, it will have been overcome by the elections. Time will simply
run out on PIRMA,if the intention is to lift term limits in time for the 1998 elections.

"That term limits may no longer be lifted prior to the 1998 elections via a people's initiative
does not detract one whit from (1) my firm conviction that RA 6735 is sufficient and adequate
to implement this constitutional right and, more important, (2) my faith in the power of the
people to initiate changes in local and national laws and the Constitution. In fact, I think the
Court can deliberate on these two items even more serenely and wisely now that the
debates will be free from the din and distraction of the 1998 elections. After all, jurisprudence
is not merely for the here and now but, more so, for the hereafter and the morrow. Let me
therefore stress, by way of epilogue, my unbending credo in favor of our people's right to
initiative.

least 12% of the registered voters nationwide, of which every legislative district is represented by at
least 3% of the registered voters therein."

__________________

Epilogue

"I believe in democracy – in our people's natural right to determine our own destiny.

"I believe in the process of initiative as a democratic method of enabling our people to
express their will and chart their history. Initiative is an alternative to bloody revolution,
internal chaos and civil strife. It is an inherent right of the people – as basic as the right to
elect, the right to self-determination and the right to individual liberties. I believe that Filipinos
have the ability and the capacity to rise above themselves, to use this right of initiative wisely
and maturely, and to choose what is best for themselves and their posterity.

"Such beliefs, however, should not be equated with a desire to perpetuate a particular official
or group of officials in power. Far from it. Such perpetuation is anathema to democracy. My
firm conviction that there is an adequate law implementing the constitutional right of initiative
does not ipso facto result in the victory of the PIRMA petition or of any proposed
constitutional change. There are, after all, sufficient safeguards to guarantee the proper
use of such constitutional right and to forestall its misuse and abuse. First, initiative cannot
be used to revise the Constitution, only to amend it. Second, the petitioners' signatures must
be validated against an existing list of voters and/or voters' identification
cards. Third, initiative is a reverse power of and by the people, not of incumbent officials and
their machinators. Fourth and most important of all, the signatures must be verified as real
and genuine; not concocted, fictitious or fabricated. The only legal way to do this is to enable
the Commission on Elections to conduct a nationwide verification process as mandated by
the Constitution and the law. Such verification, it bears stressing, is subject to review by this
Court.

"There were, by the most generous estimate, only a million people who gathered at EDSA in
1986, and yet they changed the history of our country. PIRMA claims six times that number,
not just from the National Capital Region but from all over the country. Is this claim through
the invention of its novel theory of statutory insufficiency, the Court's majority has stifled the
only legal method of determining whether PIRMA is real or not, whether there is indeed a
popular clamor to lift term limits of elected officials, and whether six million voters want to
initiate amendments to their most basic law. In suppressing a judicial answer to such
questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal
presumption of legality and regularity. In its misplaced zeal to exterminate the rats, it burned
down the whole house. It unceremoniously divested the people of a basic constitutional right.

In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at
the right time and for the right reason."

In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested
against them, the present Petition of Raul Lambino and Erico Aumentado must be
DISMISSED. Unfortunately, the right thingis being rushed in the wrong way and for the wrong
reasons. Let me explain.

No Grave Abuse

of Discretion by Comelec

As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition.
After all, the Commission merely followed the holding in Santiago permanently

____________________

"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This
mission is undertaken not only to resolve the vagaries of present events but also to build the
pathways of tomorrow. The sum total of the entire process of adversarial litigation is the
verity of facts and the application of law thereto. By the majority cop-out in this mission of
discovery, our country and our people have been deprived not only of a basic constitutional
right, as earlier noted, but also of the judicial opportunity to verify the truth."

enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to provide for
the implementation of the system."

Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.4 Neither
can whim, caprice, arbitrariness or personal bias be attributed to the Commission.5 Quite the
contrary, it prudently followed this Court's jurisprudence in Santiago and PIRMA. Even assuming
arguendo that Comelec erred in ruling on a very difficult and unsettled question of law, this Court still
cannot attribute grave abuse of discretion to the poll body with respect to that action.6

The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The
differences pointed out by Justice Reynato S. Puno are, with due respect, superficial. It is argued
that, unlike the present Lambino Petition, PIRMA did not contain verified signatures. These are
distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the
verification issue is "contentious" and remains unproven by petitioners. Clearly, both the
PIRMA and the Lambino Petitions contain unverified signatures. Therefore, they both deserve
the same treatment: DISMISSAL.

Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the
Commission had "only complied" with this Court's Decision in Santiago, the same reason given by
Comelec in this case. The Separate Opinions in PIRMA gave no other reason. No one argued,
even remotely, that the PIRMA Petition should have been dismissed because the signatures
were unverified.

To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of
signatures becomes a condition precedent to the filing of the petition, and is jurisdictional.7 Without
those signatures, the Comelec shall motu proprio reject the petition."

So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the
exercise of the right are substantially changed, the Comelec cannot be faulted for acting in
accord with this Court's pronouncements. Respondent Commission has no discretion, under
any guise, to refuse enforcement of any final decision of this Court.8 The refusal of the poll
body to act on the Lambino Petition was its only recourse. Any other mode of action would appear
not only presumptuous, but also contemptuous. It would have constituted defiance of the Court and
would have surely been struck down as grave abuse of discretion and contumacious disregard of the
supremacy of this Court as the final arbiter of justiciable controversies.

Even assuming further that this Court rules, as I believe it should (for the reasons given in my
Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed sufficient to implement an
initiative to amend the Constitution, still, no grave abuse of discretion can be attributed to the
Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in
question.

Only Amendments,

Not Revisions
I reiterate that only amendments, not revisions, may be the proper subject of an initiative to
change the Constitution. This principle is crystal clear from even a layperson's reading of the basic
law.9

I submit that changing the system of government from presidential to parliamentary and the form of
the legislature from bicameral to unicameral contemplates an overhaul of the structure of
government. The ponencia has amply demonstrated that the merger of the legislative and the
executive branches under a unicameral-parliamentary system, "[b]y any legal test and under any
jurisdiction," will "radically alter the framework of government as set forth in the Constitution."
Indeed, the proposed changes have an overall implication on the entire Constitution; they effectively
rewrite its most important and basic provisions. The prolixity and complexity of the changes cannot
be categorized, even by semantic generosity, as "amendments."

In addition, may I say that of the three modes of changing the Constitution, revisions (or
amendments) may be proposed only through the first two: by Congress or by a constitutional
convention. Under the third mode -- people's initiative -- only amendments are allowed. Many of the
justices' Opinions have cited the historical, philosophical and jurisprudential bases of their respective
positions. I will not add to the woes of the reader by reiterating them here.

Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found
in the Constitution itself: a revision may be done only when the proposed change can be
drafted, defined, articulated, discussed and agreed upon after a mature and democratic
debate in a deliberative body like Congress or a Convention. The changes proposed must
necessarily be scrutinized, as their adoption or non-adoption must result from an informed
judgment.

Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to
spend many months of purposeful discussions, democratic debates and rounds of voting before they
could agree on the wordings covering the philosophy, the underlying principles, and the structure of
government of our Republic.

Verily, even bills creating or changing the administrative structure of local governments take several
weeks or even months of drafting, reading, and debating before Congress can approve them. How
much more when it comes to constitutional changes?

A change in the form of government of our country from presidential-bicameral to parliamentary-


unicameral is monumental. Even the initiative proponents admit this fact. So, why should a revision
be rammed down our people's throats without the benefit of intelligent discussion in a deliberative
assembly?

Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly
prohibiting petitions for initiative from "embracing more than one subject matter."10 The present
initiative covers at least two subjects: (1) the shift from a presidential to a parliamentary form of
government; and (2) the change from a bicameral to a unicameral legislature.11 Thus, even under
Republic Act 6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino
Petition deserves dismissal.

12 Percent and 3 Percent Thresholds


Not Proven by Petitioners

The litmus test of a people's petition for initiative is its ability to muster the constitutional
requirement that it be supported by at least 12 percent of the registered voters nationwide, of which
at least 3 percent of the registered voters in every legislative district must be represented. As pointed
out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to meet the
minimum percentages required.12

Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve
"contentious facts," which have not been proven by the Lambino Petition. Thus, he is urging a
remand to the Comelec.

But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates
the said requisites of an initiative petition. In other words, a petition that does not show the
required percentages is fatally defective and must be dismissed, as the Delfin Petition was,
in Santiago.

Furthermore, as the ponencia had discussed extensively, the present Petition is void and
unconstitutional. It points out that the Petition dismally fails to comply with the constitutional
requirement that an initiative must be directly proposed by the people. Specifically, the ponencia has
amply established that petitioners were unable to show that the Lambino Petition contained, or
incorporated by attachment, the full text of the proposed changes.

So, too, a remand is futile. Even if the required percentages are proven before the Commission,
the Petition must still be dismissed for proposing a revision, not an amendment, in gross
violation of the Constitution. At the very least, it proposes more than one subject, in violation of
Republic Act 6735.

Summation

Petitioners plead with this Court to hear the voice of the people because, in the words of Justice
Puno who supports them, the "people's voice is sovereign in a democracy."

I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that
"initiative is a democratic method of enabling our people to express their will and chart their history. x
x x. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this
right of initiative wisely and maturely, and to choose what is best for themselves and their posterity."

This belief will not, however, automatically and blindly result in an initiative to change the
Constitution, because the present Petition violates the following:

· The Constitution (specifically Article XVII, which allows only amendments, not revisions, and
requires definite percentages of verified signatures)

· The law (specifically, Republic Act 6735, which prohibits petitions containing more than one
subject)

· Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under
consideration on the ground that, by following the Santiago ruling, the Comelec had not gravely
abused its discretion).

I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is
a cop-out, a hand-washing already discredited 2000 years ago. Instead of finger-pointing, I
believe we must confront the issues head on, because the people expect no less from this august
and venerable institution of supreme justice.
Epilogue

At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall,
is a treasured feature of the Filipino constitutional system. It was born out of our world-admired and
often-imitated People Power, but its misuse and abuse must be resolutely rejected. Democracy
must be cherished, but mob rule vanquished.

The Constitution is a sacred social compact, forged between the government and the people,
between each individual and the rest of the citizenry. Through it, the people have solemnly
expressed their will that all of them shall be governed by laws, and their rights limited by agreed-
upon covenants to promote the common good. If we are to uphold the Rule of Law and reject the
rule of the mob, we must faithfully abide by the processes the Constitution has ordained in
order to bring about a peaceful, just and humane society. Assuming arguendothat six million
people allegedly gave their assent to the proposed changes in the Constitution, they are
nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by
a far greater majority almost twenty years ago.14 I do not denigrate the majesty of the sovereign will;
rather, I elevate our society to the loftiest perch, because our government must remain as one of
laws and not of men.

Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the
Constitution. Being the protectors of the fundamental law as the highest expression of the sovereign
will, they must subject to the strictest scrutiny any attempt to change it, lest it be trivialized and
degraded by the assaults of the mob and of ill-conceived designs. The Court must single-
mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people.

The judiciary may be the weakest branch of government. Nonetheless, when ranged against
incessant voices from the more powerful branches of government, it should never cower in
submission. On the other hand, I daresay that the same weakness of the Court becomes its strength
when it speaks independently through decisions that rightfully uphold the supremacy of the
Constitution and the Rule of Law. The strength of the judiciary lies not in its lack of brute power,
but in its moral courage to perform its constitutional duty at all times against all odds. Its might is in
its being right.15

During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged
carrots offered and sticks drawn by those interested in the outcome of this case.16 There being no
judicial proof of these allegations, I shall not comment on them for the nonce, except to quote the
Good Book, which says, "There is nothing hidden that will not be revealed, and nothing secret that
will not be known and come to light."17

Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of
its members shall be judged by posterity. Ten years, fifty years, a hundred years -- or even a
thousand years -- from now, what the Court did here, and how each justice opined and voted, will
still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the
abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day.

Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation
and the world for its independence, integrity, industry and intelligence.

WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN
Chief Justice

____________________

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, ET AL., Respondents.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

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

SEPARATE OPINION

YNARES-SANTIAGO, J.:

I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling
in Santiago v. COMELEC1 is not a binding precedent. However, it is my position that even
if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the
purpose of people's initiative to amend the Constitution, the petition for initiative in this case must
nonetheless be dismissed.

There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly
invoke the said law to justify their alleged people's initiative. Section 5(b) of R.A. 6735 requires that
"[a] petition for an initiativeon the 1987 Constitution must have at least twelve per centum (12%) of
the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein." On the other hand,
Section 5(c)2 of the same law requires that the petition should state, among others, the
proposition3 or the "contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed." If we were to apply Section 5(c) to an initiative to amend the Constitution, as
petitioners submit, the petition for initiative signed by the required number of voters should
incorporate therein a text of the proposed changes to the Constitution. However, such requirement
was not followed in the case at bar.

During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of
the text of the proposed changes to the Constitution. According to him, these were subsequently
distributed to their agents all over the country, for attachment to the sheets of paper on which the
signatures were to be affixed. Upon being asked, however, if he in fact knew whether the text was
actually attached to the signature sheets which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the Court for certain whether their
representatives complied with this requirement.

The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably
establish that the full text of the proposed changes was not attached to the signature sheets. All that
the signature sheets contained was the general proposition and abstract, which falls short of the full
text requirement of R.A. 6735.

The necessity of setting forth the text of the proposed constitutional changes in the petition for
initiative to be signed by the people cannot be seriously disputed. To begin with, Article XVII, Section
2 of the Constitution unequivocally states that "[a]mendments 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." Evidently, for the people
to propose amendments to the Constitution, they must, in the first instance, know exactly what they
are proposing. It is not enough that they merely possess a general idea of the proposed changes, as
the Constitution speaks of a "direct" proposal by the people.

Although the framers of the Constitution left the matter of implementing the constitutional right of
initiative to Congress, it might be noted that they themselves reasonably assumed that the draft of
the proposed constitutional amendments would be shown to the people during the process of
signature gathering. Thus –

MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at
least 10 percent of the registered voters." How will we determine that 10 percent has been
achieved? How will the voters manifest their desire, is it by signature?

MR. SUAREZ. Yes, by signatures.

MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready to be
shown to the people when they are asked to sign?

MR. SUAREZ. That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before
they sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.4

It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the
proposed changes must necessarily be stated in or attached to the initiative petition. The signatories
to the petition must be given an opportunity to fully comprehend the meaning and effect of the
proposed changes to enable them to make a free, intelligent and well-informed choice on the matter.

Needless to say, the requirement of setting forth the complete text of the proposed changes in the
petition for initiative is a safeguard against fraud and deception. If the whole text of the proposed
changes is contained in or attached to the petition, intercalations and riders may be duly avoided.
Only then can we be assured that the proposed changes are truly of the people and that the
signatories have been fully apprised of its implications.
If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and
referendum process, such provision must be viewed as an indispensable requirement and failure to
substantially comply therewith is fatal.5 The failure of petitioners in this case to comply with the full
text requirement resultantly rendered their petition for initiative fatally defective.

The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under
Section 10(a) of R.A. 6735:

SEC. 10. Prohibited Measures.— The following cannot be the subject of an initiative or
referendum petition:

(a) No petition embracing more than one subject shall be submitted to the electorate; x x x

The one subject rule, as relating to an initiative to amend the Constitution, has the same object and
purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)6 of the
Constitution.7 To elaborate, the one subject-one bill rule was designed to do away with the practice
of inserting two or more unrelated provisions in one bill, so that those favoring one provision would
be compelled to adopt the others. By this process of log-rolling, the adoption of both provisions could
be accomplished and ensured, when neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to prevent surprise
and fraud on the electorate. It is meant to safeguard the integrity of the initiative process by ensuring
that no unrelated riders are concealed within the terms of the proposed amendment. This in turn
guarantees that the signatories are fully aware of the nature, scope and purpose of the proposed
amendment.

Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one
subject matter, that is – the shift from presidential to a parliamentary system of government.
According to petitioners, all of the other proposed changes are merely incidental to this main
proposal and are reasonably germane and necessary thereto.8 An examination of the text of the
proposed changes reveals, however, that this is not the case.

The proposed changes to the Constitution cover other subjects that are beyond the main proposal
espoused by the petitioners. Apart from a shift from the presidential to a parliamentary form of
government, the proposed changes include the abolition of one House of Congress,9 and the
convening of a constituent assembly to propose additional amendments to the Constitution.10 Also
included within its terms is an omnibus declaration that those constitutional provisions under Articles
VI and VII, which are inconsistent with the unicameral-parliamentary form of government, shall be
deemed amended to conform thereto.

It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of
government, it actually seeks to affect other subjects that are not reasonably germane to the
constitutional alteration that is purportedly sought. For one, a shift to a parliamentary system of
government does not necessarily result in the adoption of a unicameral legislature. A parliamentary
system can exist in many different "hybrid" forms of government, which may or may not embrace
unicameralism.11 In other words, the shift from presidential to parliamentary structure and from a
bicameral to a unicameral legislature is neither the cause nor effect of the other.

I also fail to see the relation of convening a constituent assembly with the proposed change in our
system of government. As a subject matter, the convening of a constituent assembly to amend the
Constitution presents a range of issues that is far removed from the subject of a shift in government.
Besides, the constituent assembly is supposed to convene and propose amendments to the
Constitution after the proposed change in the system of government has already taken place. This
only goes to show that the convening of the constituent assembly is not necessary to effectuate a
change to a parliamentary system of government.

The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a
unicameral-parliamentary system of government shall be deemed amended is equally bothersome.
The statement does not specify what these inconsistencies and amendments may be, such that
everyone is left to guess the provisions that could eventually be affected by the proposed changes.
The subject and scope of these automatic amendments cannot even be spelled out with certainty.
There is thus no reasonable measure of its impact on the other constitutional provisions.

The foregoing proposed changes cannot be the subject of a people's initiative under Section 2,
Article XVII of the Constitution. Taken together, the proposed changes indicate that the intendment
is not simply to effect substantial amendments to the Constitution, but a revision thereof. The
distinction between an amendment and revision was explained by Dean Vicente G. Sinco, as
follows:

"Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revision may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it provisions deemed essential
on account of changed conditions or to suppress portions of it that seem obsolete, or
dangerous, or misleading in their effect."12

The foregoing traditional exposition of the difference between amendment and revision has indeed
guided us throughout our constitutional history. However, the distinction between the two terms is
not, to my mind, as significant in the context of our past constitutions, as it should be now under the
1987 Constitution. The reason for this is apparent. Under our past constitutions, it was Congress
alone, acting either as a constituent assembly or by calling out a constitutional convention, that
exercised authority to either amend or revise the Constitution through the procedures therein
described. Although the distinction between the two terms was theoretically recognized under both
the 1935 and 1973 Constitutions, the need to highlight the difference was not as material because it
was only Congress that could effect constitutional changes by choosing between the two modalities.

However, it is different now under the 1987 Constitution. Apart from providing for the two modes of
either Congress constituting itself as a constituent assembly or calling out for a constitutional
convention, a third mode was introduced for proposing changes to the Constitution. This mode refers
to the people's right to propose amendments to the fundamental law through the filing of a petition
for initiative.

Otherwise stated, our experience of what constitutes amendment or revision under the past
constitutions is not determinative of what the two terms mean now, as related to the exercise of the
right to propose either amendments or revision. The changes introduced to both the Constitutions of
1935 and 1973 could have indeed been deemed an amendment or revision, but the authority for
effecting either would never have been questioned since the same belonged solely to
Congress. In contrast, the 1987 Constitution clearly limits the right of the people to directly propose
constitutional changes to amendments only. We must consequently not be swayed by examples of
constitutional changes effected prior to the present fundamental law, in determining whether such
changes are revisory or amendatory in nature.

In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio
in Javellana v. Executive Secretary13 related to the procedure to be followed in ratifying a
completely new charter proposed by a constitutional convention. The authority or right of the
constitutional convention itself to effect such a revision was not put in issue in that case. As far as
determining what constitutes "amendments" for the purpose of a people's initiative, therefore, we
have neither relevant precedent nor prior experience. We must thus confine ourselves to Dean
Sinco's basic articulation of the two terms.

It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the
Constitution. The part need not be a substantial part as a change may qualify as a revision even if it
only involves some of the important provisions. For as long as the intention and plan to be carried
out contemplate a consideration of all the provisions of the Constitution "to determine which should
be altered or suppressed, or whether the whole document should be replaced with an entirely new
one," the proposed change may be deemed a revision and not merely an amendment.

Thus, it is not by the sheer number alone of the proposed changes that the same may be considered
as either an amendment or revision. In so determining, another overriding factor is the "original
intention and plan authorized to be carried out" by the proposed changes. If the same relates to a re-
examination of the entire document to see which provisions remain relevant or if it has far-reaching
effects on the entire document, then the same constitutes a revision and not a mere amendment of
the Constitution.

From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is
necessary in assessing what may be considered as an amendment or revision. It is not enough that
we focus simply on the physical scope of the proposed changes, but also consider what it means in
relation to the entire document. No clear demarcation line can be drawn to distinguish the two terms
and each circumstance must be judged on the basis of its own peculiar conditions. The
determination lies in assessing the impact that the proposed changes may have on the entire
instrument, and not simply on an arithmetical appraisal of the specific provisions which it seeks to
affect.

In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the
combination of quantitative and qualitative assessment of proposed constitutional changes, in order
to determine whether the same is revisory or merely amendatory. In that case, the McFadden court
found the proposed changes extensive since at least 15 of the 25 articles contained in the California
Constitution would either be repealed in their entirety or substantially altered, and four new topics
would be introduced. However, it went on to consider the qualitative effects that the proposed
initiative measure would have on California's basic plan of government. It observed that the proposal
would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed
powers to an independent commission created under the proposed measure. Consequently, the
proposal inMcFadden was not only deemed as broad and numerous in physical scope, but was also
held as having a substantive effect on the fundamental governmental plan of the State of California.

The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court
in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in
the United States Supreme Court all judicial interpretative powers of the California courts over
fundamental criminal defense rights in that state. It was observed that although quantitatively, the
proposition did "not seem so extensive as to change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless,
"would substantially alter the substance and integrity of the state Constitution as a document of
independent force and effect." Quoting Amador Valley Joint Union High School District v. State
Board of Equalization,16 the Raven court said:

". . . apart from a measure effecting widespread deletions, additions and amendments
involving many constitutional articles, 'even a relatively simple enactment may accomplish
such far reaching changes in the nature of our basic governmental plan as to amount to a
revision also…[A]n enactment which purported to vest all judicial power in the Legislature
would amount to a revision without regard either to the length or complexity of the measure
or the number of existing articles or sections affected by such change.'" (Underscoring
supplied and citations omitted)

Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative
and qualitative effects of a proposed measure on its constitutional scheme. Substantial changes in
either respect could amount to a revision.17

I am persuaded that we can approach the present issue in the same manner. The experience of the
courts in California is not far removed from the standards expounded on by Dean Sinco when he set
out to differentiate between amendment and revision. It is actually consistent, not only with our
traditional concept of the two terms, but also with the mindset of our constitutional framers when they
referred to the disquisition of Justice Antonio inJavellana.18 We must thus consider whether the
proposed changes in this case affect our Constitution in both its substantial physical entirety and in
its basic plan of government.

The question posed is: do the proposed changes, regardless of whether these are simple or
substantial, amount to a revision as to be excluded from the people's right to directly
propose amendments to the fundamental law?

As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the
proposed changes. These tests are consistent with Dean Sinco's traditional concept of amendment
and revision when he explains that, quantitatively, revision "may result in the rewriting either of the
whole constitution, or the greater part of it, or perhaps only some of its provisions." In any case, he
continues, "the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out." Unmistakably, the latter statement refers to the qualitative effect of the
proposed changes.

It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case
will affect only two (2) out of the eighteen (18) articles of the 1987 Constitution, namely, Article VI
(Legislative Department) and Article VII (Executive Department), as well as provisions that will
ensure the smooth transition from a presidential-bicameral system to a parliamentary-unicameral
structure of government. The quantitative effect of the proposed changes is neither broad nor
extensive and will not affect the substantial entirety of the 1987 Constitution.

However, it is my opinion that the proposed changes will have serious qualitative consequences on
the Constitution. The initiative petition, if successful, will undoubtedly alter, not only our basic
governmental plan, but also redefine our rights as citizens in relation to government. The proposed
changes will set into motion a ripple effect that will strike at the very foundation of our basic
constitutional plan. It is therefore an impermissible constitutional revision that may not be effected
through a people's initiative.

Petitioners' main proposal pertains to the shifting of our form of government from the presidential to
the parliamentary system. An examination of their proposal reveals that there will be a fusion of the
executive and legislative departments into one parliament that will be elected on the basis of
proportional representation. No term limits are set for the members of parliament except for those
elected under the party-list system whose terms and number shall be provided by law. There will be
a President who shall be the head of state, but the head of government is the Prime Minister. The
latter and his cabinet shall be elected from among the members of parliament and shall be
responsible to parliament for the program of government.

The preceding proposal indicates that, under the proposed system, the executive and legislature
shall be one and the same, such that parliament will be the paramount governing institution. What
this implies is that there will be no separation between the law-making and enforcement powers of
the state, that are traditionally delineated between the executive and legislature in a presidential
form of government. Necessarily, the checks and balances inherent in the fundamental plan of our
U.S.-style presidential system will be eliminated. The workings of government shall instead be
controlled by the internal political dynamics prevailing in the parliament.

Our present governmental system is built on the separation of powers among the three branches of
government. The legislature is generally limited to the enactment of laws, the executive to the
enforcement of laws and the judiciary to the application of laws. This separation is intended to
prevent a concentration of authority in one person or group that might lead to an irreversible error or
abuse in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the
doctrine of separation of powers is intended to secure action, to forestall overaction, to prevent
despotism and obtain efficiency.19

In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the
legislative and executive powers of the state, since both the Prime Minister and the members of his
cabinet are drawn from parliament. There are no effective limits to what the Prime Minister and
parliament can do, except the will of the parliamentary majority. This goes against the central
principle of our present constitutional scheme that distributes the powers of government and
provides for counteraction among the three branches. Although both the presidential and
parliamentary systems are theoretically consistent with constitutional democracy, the underlying
tenets and resulting governmental framework are nonetheless radically different.

Consequently, the shift from presidential to parliamentary form of government cannot be regarded as
anything but a drastic change. It will require a total overhaul of our governmental structure and
involve a re-orientation in the cardinal doctrines that govern our constitutional set-up. As explained
by Fr. Joaquin Bernas, S.J., 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.20 It cannot, by any
standard, be deemed as a mere constitutional amendment.

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.21 (Underscoring supplied)
The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the
proponents to effect even more far-reaching changes in our fundamental law. If the original intent
were to simply shift the form of government to the parliamentary system, then there would have
been no need for the calling out of a constituent assembly to propose further amendments to the
Constitution. It should be noted that, once convened, a constituent assembly can do away and
replace any constitutional provision which may not even have a bearing on the shift to a
parliamentary system of government. The inclusion of such a proposal reveals the proponents' plan
to consider all provisions of the constitution, either to determine which of its provisions should be
altered or suppressed or whether the whole document should be replaced with an entirely new one.

Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative.
The proposal to convene a constituent assembly, which by its terms is mandatory, will practically
jeopardize the future of the entire Constitution and place it on shaky grounds. The plan of the
proponents, as reflected in their proposed changes, goes beyond the shifting of government from the
presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of
our state as a democratic and republican state."

To say that the proposed changes will affect only the constitution of government is therefore a
fallacy. To repeat, the combined effect of the proposed changes to Articles VI and VII and those
pertaining to the Transitory Provisions under Article XVIII indubitably establish the intent and plan of
the proponents to possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid
reason exists for authorizing further amendments or revisions to the Constitution if the intention of
the proposed changes is truly what it purports to be.

There is no question here that only amendments to the Constitution may be undertaken through a
people's initiative and not a revision, as textually reflected in the Constitution itself. This conclusion is
inevitable especially from a comparative examination of Section 2 in relation to Sections 1 and 4 of
Article XVII, which state:

SECTION 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.

SECTION 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.

xxxx

SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall
be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission of Elections of the sufficiency of the petition.
(Underscoring supplied)

It is clear that the right of the people to directly propose changes to the Constitution is limited to
amendments and does not include a revision thereof. Otherwise, it would have been unnecessary to
provide for Section 2 to distinguish its scope from the rights vested in Congress under Section 1.
The latter lucidly states that Congress may propose both amendments and a revision of the
Constitution by either convening a constituent assembly or calling for a constitutional convention.
Section 2, on the other hand, textually commits to the people the right to propose only
amendments by direct action.

To hold, therefore, that Section 2 allows substantial amendments amounting to revision


obliterates the clear distinction in scope between Sections 1 and 2. The intention, as may be
seen from a cursory perusal of the above provisions, is to provide differing fields of application for
the three modes of effecting changes to the Constitution. We need not even delve into the intent of
the constitutional framers to see that the distinction in scope is definitely marked. We should thus
apply these provisions with a discerning regard for this distinction. Again, McFadden22 is instructive:

". . . The differentiation required is not merely between two words; more accurately it is
between two procedures and between their respective fields of application. Each procedure,
if we follow elementary principles of statutory construction, must be understood to have a
substantial field of application, not to be x x x a mere alternative procedure in the same field.
Each of the two words, then, must be understood to denote, respectively, not only a
procedure but also a field of application appropriate to its procedure. The people of this state
have spoken; they made it clear when they adopted article XVIII and made amendment
relatively simple but provided the formidable bulwark of a constitutional convention as a
protection against improvident or hasty (or any other) revision, that they understood that
there was a real difference between amendment and revision. We find nothing whatsoever in
the language of the initiative amendment of 1911 (art. IV, § 1) to effect a breaking down of
that difference. On the contrary, the distinction appears to be x x x scrupulously preserved by
the express declaration in the amendment x x x that the power to propose and vote on
"amendments to the Constitution" is reserved directly to the people in initiative proceedings,
while leaving unmentioned the power and the procedure relative to constitutional revision,
which revisional power and procedure, it will be remembered, had already been specifically
treated in section 2 of article XVIII.Intervenors' contention--that any change less than a total
one is but amendatory--would reduce to the rubble of absurdity the bulwark so carefully
erected and preserved. Each situation involving the question of amendment, as contrasted
with revision, of the Constitution must, we think, be resolved upon its own facts."

Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the
provisions on amendments and revisions under Article XVII. The voice and will of our people cannot
be any clearer when they limited people's initiative to mere amendments of the fundamental law and
excluded revisions in its scope. In this regard, the task of the Court is to give effect to the people's
voice, as expressed unequivocally through the Constitution.

Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines
the constitutional meaning of "sovereignty of the people." It is through these provisions that the
sovereign people have allowed the expression of their sovereign will and have canalized their
powers which would otherwise be plenary. By approving these provisions, the sovereign people
have decided to limit themselves and future generations in the exercise of their sovereign
power.23 They are thus bound by the constitution and are powerless, whatever their numbers, to
change or thwart its mandates, except through the means prescribed by the Constitution itself.24

It is thus misplaced to argue that the people may propose revisions to the Constitution through
people's initiative because their representatives, whose power is merely delegated, may do
so. While Section 1 of Article XVII may be considered as a provision delegating the sovereign
powers of amendment and revision to Congress, Section 2, in contrast, is a self-limitation on
that sovereign power. In the words of Cooley:

x x x Although by their constitutions the people have delegated the exercise of sovereign
powers to the several departments, they have not thereby divested themselves of the
sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a
power to control the governments they create, and the three departments are responsible to
and subject to be ordered, directed, changed or abolished by them. But this control and
direction must be exercised in the legitimate mode previously agreed upon. The voice of the
people, acting in their sovereign capacity, can be of legal force only when expressed at the
times and under the conditions which they themselves have prescribed and pointed out by
the Constitution, or which, consistently with the Constitution, have been prescribed and
pointed out for them by statute; and if by any portion of the people, however large, an
attempt should be made to interfere with the regular working of the agencies of government
at any other time or in any other mode than as allowed by existing law, either constitutional
or statutory, it would be revolutionary in character, and must be resisted and repressed by
the officers who, for the time being, represent legitimate government.25 (Underscoring
supplied)

Consequently, there is here no case of "the spring rising above its source." Nor is it one where the
people's sovereign power has been relegated to a lesser plane than that of Congress. In choosing to
exercise self-limitation, there is no absence or lack of even a fraction of the sovereign power of the
people since self-limitation itself is an expression of that sovereign power. The people have
chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the
parameters that they themselves have ordained. Otherwise, if the people choose to defy their self-
imposed constitutional restraints, we will be faced with a revolutionary situation.26

It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we
affirm, however, that aspect of direct democracy, we should not forget that, first and foremost, we
are a constitutional democracy. To uphold direct democracy at the expense of the fundamental law
is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the
powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution.

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.

CONSUELO YNARES-SANTIAGO
Associate Justice

____________________

EN BANC

G.R. NO. 174153


RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED
VOTERS,petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND
VICTORINO F. BALAIS,petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-
intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR.
REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-
BARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R.
OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA,
ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-
intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L.
SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR,
JR., oppositor-intervenor;

G.R. NO. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q.


SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR.
AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO
A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents.

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

CONCURRING OPINION

SANDOVAL–GUTIERREZ, J.:

Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in
choosing one's battlecry, lest it does more harm than good to one's cause. In its original context, the
complete version of this Latin phrase means exactly the opposite of what it is frequently taken to
mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui
solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning,
"And those people should not be listened to who keep on saying, 'The voice of the people is
the voice of God,' since the riotousness of the crowd is always very close to
madness."1 Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon
petitioners and their allies – that they may reflect upon the sincerity and authenticity of their
"people's initiative."

History has been a witness to countless iniquities committed in the name of God. Wars were waged,
despotism tolerated and oppressions justified – all these transpired as man boasted of God's
imprimatur. Today, petitioners and their allies hum the same rallying call, convincing this Court that
the people's initiative is the "voice of the people" and, therefore, the "voice of God." After a
thorough consideration of the petitions, I have come to realize that man, with his ingenuity and
arrogance, has perfected the craft of imitating the voice of God. It is against this kind of genius that
the Court must guard itself.

The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section
2, Article XVII of the Constitution which reads:

Section 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.

The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam
Defensor Santiago, et al., entitled "Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa, in their capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On
March 19, 1997, this Court rendered its Decision in favor of petitioners, holding that Republic Act No.
6735 (R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor, is "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned." A majority of eight (8)
Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1)
opined that there is no need to rule on the adequacy of R.A. No. 6735.

On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1)
filed an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen
(13) Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while
the other six (6) voted in favor of the minority opinion.3

A few months thereafter, or on September 23, 1997, the Court dismissed a similar case,
entitled People's Initiative for Reform, Modernization and Action (PIRMA) v. Commission on
Elections4 on the ground that the COMELEC did not commit grave abuse of discretion when it
dismissed PIRMA's Petition for Initiative to Propose Amendments to the Constitution "it appearing
that that it only complied with the dispositions in the Decision of the Court in G.R. no. 127325
(Santiago v. COMELEC) promulgated on March 19, 1997, and its Resolution of June 10,
1997." Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the
issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise
that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice opined
otherwise.

This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local
Authorities of the Philippines (ULAP), have gathered signatures in support of the proposed
amendments to the Constitution, which entail a change in the form of government from bicameral-
presidential to unicameral-parliamentary, thus:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to
read, as follows:

Section 1. There shall be a President who shall be the Head of State. The executive power
shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime
Minister shall be elected by a majority of all the Members of Parliament from among
themselves. He shall be responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to


a unicameral-Parliamentary form of government, there shall be a new Article XVIII,
entitled "Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of
their term at noon on the thirtieth day of June 2010 and shall continue to exercise their
powers under the 1987 Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.
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
seriatium up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; provided, however, that any and all references therein to
"Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be
changed to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of Parliament" and any and all references to the
"President" and/or "Acting President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby be amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they
shall be deemed amended so as to conform to a unicameral Parliamentary System of
government; provided, however, that any and all references therein to "Congress," "Senate,"
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read as "Member(s) of
Parliament" and any and all references to the "President" and/or "Acting President" shall be
changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its sessions
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of
the thirtieth day of June 2010.

(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.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."

(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. The duty elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.

Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the
abstract of the proposed amendments, quoted as follows:

Abstract: Do you approve of the amendment of Article 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?

On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the
COMELEC aPetition for Initiative to Amend the Constitution.5 Five (5) days thereafter, they filed an
Amended Petition alleging that they are filing the petition in their own behalf and together with
some 6.3 million registered voters who have affixed their signatures on the signature sheets
attached thereto. They claimed that the signatures of registered voters appearing on the signature
sheets, constituting at least twelve per cent (12%) of all registered voters in the country, wherein
each legislative district is represented by at least three per cent (3%) of all the registered voters,
were verified by their respective city or municipal election officers.

Several organizations opposed the petition. 6

In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as
basis this Court's ruling in Santiago, permanently enjoining it "from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system."

Hence, the present petition for certiorari and mandamus praying that this Court set aside the
COMELEC Resolution and direct the latter tocomply with Section 4, Article XVII of the Constitution,
which provides:

Sec. 4 x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.

I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len
Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and
Commissioners be required to show why they should not be punished for contempt7 of court for
disregarding the permanent injunction issued by this Court in Santiago.

I
Respondent COMELEC did not act with grave abuse of discretion

Without necessarily brushing aside the other important issues, I believe the resolution of the present
petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it
denied Lambino, et al.'s petition for initiative to amend the Constitution on the basis of this Court's
Decision in Santiago v. COMELEC?
In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick
is the attendance of "grave abuse of discretion" on the part of the COMELEC.

Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in
grave abuse of discretion when the same was performed in a capricious or whimsical exercise of
judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or personal hostility.8

The Resolution of respondent COMELEC denying due course to the petition for initiative on the
basis of a case (Santiago) decided by this Court cannot, in any way, be characterized as
"capricious or whimsical," "patent and gross," or "arbitrary and despotic." On the contrary, it
was the most prudent course to take. It must be stressed that in Santiago, this Court permanently
enjoins respondent COMELEC "from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted." It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has
no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As
succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate
Opinion in the subsequent case of PIRMA vs. COMELEC:9

x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with
said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest
Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse
of discretion. Refusal to act on the PIRMA petition was the only recourse open to the
Comelec. Any other mode of action would have constituted defiance of the Court and would
have been struck down as grave abuse of discretion and contumacious disregard of this
Court's supremacy as the final arbiter of justiciable controversies.

It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts,
tribunals and administrative bodies exercising quasi-judicial functions are obliged to conform to its
pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable
controversy. In other words, there is only one Supreme Court from whose decisions all other
courts should take their bearings.10 As a warning to lower court judges who would not adhere to
its rulings, this Court, in People v. Santos,11 held:

Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that
the application of a doctrine promulgated by this Superiority is against his way of reasoning,
or against his conscience, he may state his opinion on the matter, but rather than disposing
of the case in accordance with his personal views he must first think that it is his duty to
apply the law as interpreted by the Highest Court of the Land, and that any deviation from a
principle laid down by the latter would unavoidably cause, as a sequel, unnecessary
inconveniences, delays and expenses to the litigants. And if despite of what is here said, a
Judge still believes that he cannot follow Our rulings, then he has no other alternative than to
place himself in the position that he could properly avoid the duty of having to render
judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that.

Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of
Lambino, et al. for it merely followed this Court's ruling in Santiago.
Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in
Santiago is the established doctrine and that the COMELEC did not commit grave abuse of
discretion in invoking it, thus:

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 of this Court in G.R. No.
127325 promulgated on March 19, 1997, and its resolution on June 10, 1997.

Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and
respect to the pronouncement of this Court in Santiago.

II
The doctrine of stare decisis
bars the re-examination of Santiago

It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as
against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion
for reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the
Decision was overturned. It only shows that the opposite view fails to muster enough votes to modify
or reverse the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company
Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration
signifies that the ground relied upon have been found, upon due deliberation, to be without
merit, as not being of sufficient weight to warrant a modification of the judgment or final
order.

With Santiago being the only impediment to the instant petition for initiative, petitioners persistently
stress that the doctrine of stare decisis does not bar its re-examination.

I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the
decisions and disturb not what is settled."15 As used in our jurisprudence, it means that "once
this Court has laid down a principle of law as applicable to a certain state of facts, it would
adhere to that principle and apply it to all future cases in which the facts are substantially the
same as in the earlier controversy."16

There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but
the doctrine is usually justified by arguments which focus on the desirability of stability and certainty
in the law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The
Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the
opposite way between another. 'If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday when I was a
defendant, I shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast; it would be an
infringement, material and moral, of my rights." Adherence to precedent must then be
the rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.17

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering
the observation of American philosopher William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two similar individuals in
similar circumstances and one of them is treated better or worse than the other. In this
case, the cry of injustice rightly goes up against the responsible agent or group; and unless
that agent or group can establish that there is some relevant dissimilarity after all between
the individuals concerned and their circumstances, he or they will be guilty as charged.18

Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior
decisions, "It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must
be followed even though the case, if considered anew, might be decided differently by the current
justices. This policy x x x 'is based on the assumption that certainty, predictability and
stability in the law are the major objectives of the legal system; i.e., that parties should be
able to regulate their conduct and enter into relationships with reasonable assurance of the
governing rules of law.19 Accordingly, a party urging overruling a precedent faces a rightly onerous
task, the difficulty of which is roughly proportional to a number of factors, including the age of the
precedent, the nature and extent of public and private reliance on it, and its consistency or
inconsistency with other related rules of law. Here, petitioners failed to discharge their task.

Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years
ago. During that span of time, the Filipino people, specifically the law practitioners, law professors,
law students, the entire judiciary and litigants have recognized this Court's Decision as a precedent.
In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the
legislature has relied on said Decision, thus, several bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on
the basis of the petition of Lambino, et al. Indeed, this Court's conclusion inSantiago 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 remains a precedent and must be upheld.

III
The proposed constitutional changes constitute revisions and not mere amendments

Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus:

Section 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.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
throughinitiative upon a petition of at least twelve per centum of the total number of
registered votes, of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x. (Emphasis supplied)

At the outset, it must be underscored that initiative and referendum, as means by which the people
can directly propose changes to the Constitution, were not provided for in the 1935 and 1973
Constitutions. Thus, under these two (2) Constitutions, there was no demand to draw the distinction
between an amendment and a revision, both being governed by a uniform process. This is not so
under our present Constitution. The distinction between an amendment and a revision becomes
crucial because only amendments are allowed under the system of people's initiative. Revisions are
within the exclusive domain of Congress, upon a vote of three-fourths of all its members, or of a
Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers
onlyamendments, thus:

The sponsor, Commissioner Suarez, is recognized.

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given us last night, we submitted this afternoon a complete Committee Report No.
7 which embodies the proposed provision governing 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.

xxx xxx xxx

MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment
yield to a few questions?

MR. DAVIDE: With pleasure, Madam President.

MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on


line I 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.20

Considering that the initiative on the Constitution only permits amendments, it is imperative to
examine whether petitioners' proposed changes partake of the nature of amendments, not revisions.

The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following
provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative
Department); Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further includes
Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from the
bicameral-presidential to a unicameral-parliamentary form of government.
Succinctly, the proposals envision a change in the form of government, from bicameral-presidential
to unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim
National Assembly; change in the terms of Members of Parliament; and the election of a Prime
Minister who shall be vested with executive power.

Petitioners contend that the proposed changes are in the nature of amendments, hence, within the
coverage of a "people's initiative."

I disagree.

The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986
Constitutional Commission, characterized an amendment and a revision to the Constitution as
follows:

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 document to determine how and to what extent they should be altered.21

Obviously, both "revision" and amendment" connote change; any distinction between the two must
be based upon the degree of change contemplated. In Kelly v. Laing,22 the Supreme Court of
Michigan made the following comparison of the two terms:

"Revision" and "amendment" have the common characteristics of working changes in the
charter, and are sometimes used in exactly the same sense but there is an essential
difference between them.

"Revision" implies a reexamination of the whole law and a redraft without obligation
to maintain the form, scheme, or structure of the old. As applied to fundamental law,
such as a constitution or charter, it suggests a convention to examine the whole subject and
to prepare and submit a new instrument whether the desired changes from the old are few or
many. Amendment implies continuance of the general plan and purpose of the law,
with corrections to better accomplish its purpose. Basically, revision suggests
fundamental change, while amendment is a correction of detail.

Although there are some authorities which indicate that a change in a city's form of government may
be accomplished by a process of "amendment," the cases which so hold seem to involve statutes
which only distinguish between amendment and totally new charters.23 However, as in Maine law,
where the statute authorizing the changes distinguishes between "charter amendment" and "charter
revision," it has been held that "(a) change in the form of government of a home rule city may
be made only by revision of the city charter, not by its amendment."24

In summary, it would seem that any major change in governmental form and scheme would probably
be interpreted as a "revision" and should be achieved through the more thorough process of
deliberation.

Although, at first glance, petitioners' proposed changes appear to cover isolated and specific
provisions only, however, upon careful scrutiny, it becomes clear that the proposed changes will
alter the very structure of our government and create multifarious ramifications. In other
words, the proposed changes will have a "domino effect" or, more appropriately, "ripple effect" on
other provisions of the Constitution.

At this juncture, it must be emphasized that the power reserved to the people to effect changes in
the Constitution includes the power to amend anysection in such a manner that the proposed
change, if approved, would "be complete within itself, relate to one subject and not
substantially affect any other section or article of the Constitution or require further
amendments to the Constitution to accomplish its purpose."25 This is clearly not the case here.

Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined
doctrine of separation of powers of government, embodied in our Constitution, by providing for an
Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive
Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as
expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is
so interwoven in the fabric of our Constitution, that any change affecting such doctrine must
necessarily be a revision.

In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:

It is thus clear that 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 x x x. Consequently, if the scope of the proposed initiative 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. x x x.

Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment,
but is in actuality a revision, as set forth in Adams v. Gunter27:

The proposal here to amend Section I 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 the 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.

Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially,
with the inclusion of the following "omnibus provision":

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a


unicameral-Parliamnetary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions" which shall read, as follows:

xxxxxxxxx

Section 3. Upon the expiration of the term of the incumbent President and Vice-President,
with the exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are
hereby amended x x x x x x and all other Sections of Article VII shall be retained and
numbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary system of government x x x x x x .

xxxxxxxxx

Section 4. (1) x x x

(3) 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.

The above provisions will necessarily result in a "ripple effect" on the other provisions of the
Constitution to make them conform to the qualities of unicameral-parliamentary form of government.
With one sweeping stroke, these proposed provisions automatically revise some provisions of the
Constitution. In McFadden, the same practice was considered by the Court to be in the nature
of substantial revision, necessitating a constitutional convention. I quote the pertinent portion
of its ruling, thus:

There is in the measure itself, no attempt to enumerate the various and many articles and
sections of our present Constitution which would be affected, replaced or repealed. It
purports only to add one new article but its framers found it necessary to include the omnibus
provision (subdivision (7) of section XII) that "If any section, subsection, sentence, clause or
phrase of the constitution is in conflict with any of the provisions of this article, such section,
subsection, sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x
x Consequently, if the scope of the proposed intitiative measure now before us is so broad
that if such measure become law a substantial revision of our present state Constitution
would be 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.28

Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only
affect the Articles or Sections sought to be changed. Rather, they are in the nature of revisions
which will affect considerable portions of the Constitution resulting in the alteration of our form of
government. The proposed changes cannot be taken in isolation since these are connected or
"interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the
changes attempted are so sweeping that it is necessary to include the provisions interlocking
them, then it is plain that the plan would constitute a recasting of the whole Constitution and
this, we think, it was intended to be accomplished only by a convention under Section 2
which has not yet been disturbed."29

I therefore conclude that since the proposed changes partake of the nature of a revision of the
Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas
expressed this insight:

But why limit initiative and referendum to simple amendments? The answer, which one can
easily glean from the rather long deliberation on initiative and referendum in the 1986
Constitutional Commission, is practicality. In other words, who is to formulate the revision or
how is it to be formulated? Revision, as concretely being proposed now, is nothing less than
a rebuilding of the Philippine constitutional structure. Who were involved in formulating
the structure? What debates ensued? What records are there for future use in interpreting
the provisions which may be found to be unclear?
In a deliberative body like Congress or a Constitutional Convention, decisions are reached
after much purifying debate. And while the deliberations proceed, the public has the
opportunity to get involved. It is only after the work of an authorized body has been
completed that it is presented to the electorate for final judgment. Careful debate is
important because the electorate tends to accept what is presented to it even sight
unseen.30

IV
R.A. No. 6735 is insufficient to implement the People's initiative

Section 2, Article XVII of the 1987 Constitution reads:

Section 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.

On its face, Section 2 is not a self-executory provision. This means that an enabling law is
imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into
this constitutional provision. However, as previously narrated, this Court struck the law
in Santiago for being incomplete, inadequate, orwanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned.

The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress
neither amended it nor passed a new law to supply its deficiencies.

Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3)
justifications why R.A. No. 6735 must be considered a sufficient law, thus:

1) The text of R.A. No. 6735 is replete with references to the right of people to
initiate changes to the Constitution;

2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use
it as instrument to implement the people's initiative; and

3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative
intent to use it as instrument to implement people's initiative.

I regret to say that the foregoing justifications are wanting.

A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives
on national and local legislation. Its references to initiatives on the Constitution are few,
isolated and misplaced. Unlike in the initiatives on national and local legislation, where R.A. No.
6735 provides a detailed, logical, and exhaustive enumeration on their implementation,31 however,
as regards initiative on the Constitution, the law merely:

(a) mentions the word "Constitution" in Section 2;32


(b) defines "initiative on the Constitution" and includes it in the enumeration of the three
systems of initiative in Section 3;33

(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;34

(d) reiterates the constitutional requirements as to the number of voters who should sign the
petition;35 and

(e) provides the date for the effectivity of the approved proposition.36

In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may
be accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by
oppositor-intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago,
various bills have been introduced in both Houses of Congress providing for
a complete and adequate process for people's initiative, such as:

· Names, signatures and addresses of petitioners who shall be registered voters;

· A statement of the provision of the Constitution or any part thereof sought to be amended
and the proposed amendment;

· The manner of initiation - in a congressional district through a petition by any individual,


group, political party or coalition with members in the congressional district;

· The language used: the petition should be printed in English and translated in the local
language;

· Signature stations to be provided for;

· Provisions pertaining to the need and manner of posting, that is, after the signatures shall
have been verified by the Commission, the verified signatures shall be posted for at least
thirty days in the respective municipal and city halls where the signatures were obtained;

· Provisions pertaining to protests allowed any protest as to the authenticity of the signatures
to be filed with the COMELEC and decided within sixty (60) days from the filing of said
protest.

None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating
its incompleteness and inadequacy.

V
Petitioners are not Proper Parties to
File the Petition for Initiative

VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article
XVII of the Constitution and R.A. No. 6735

I shall discuss the above issues together since they are interrelated and inseparable. The
determination of whether petitioners are proper parties to file the petition for initiative in behalf of the
alleged 6.3 million voters will require an examination of whether they have complied with the
provisions of Section 2, Article XVII of the Constitution.

To reiterate, Section 2, Article XVII of the Constitution provides:

Section 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. (Underscoring
supplied)

The mandate of the above constitutional provisions is definite and categorical. For a people's
initiative to prosper, the following requisites must be present:

1. It is "the people" themselves who must "directly propose" "amendments" to the


Constitution;

2. The proposed amendments must be contained in "a petition of at least twelve per
centum of the total number of registered voters;" and

3. The required minimum of 12% of the total number of registered voters "must be
represented by at least three per centum of the registered voters" of "every legislative
district."

In this case, however, the above requisites are not present.

The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two
registered voters. As shown in the "Verification/Certification with Affidavit of Non-Forum
Shopping" contained in their petition, they alleged under oath that they have caused the preparation
of the petition in their personal capacity as registered voters "and as representatives" of the
supposed 6.3 million registered voters. This goes to show that the questioned petition was not
initiated directly by the 6.3 million people who allegedly comprised at least 12% of the total number
of registered voters, as required by Section 2. Moreover, nowhere in the petition itself could be
found the signatures of the 6.3 million registered voters. Only the signatures of petitioners
Lambino and Aumentado were affixed therein "as representatives" of those 6.3 million people.
Certainly, that is not the petition for people's initiative contemplated by the Constitution.

Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as
representatives" of the alleged 6.3 million registered voters. Such act of representation is
constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the
Constitution shall be "directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters." Obviously, the phrase
"directly proposed by the people" excludes any person acting as representative or agent of the
12% of the total number of registered voters. The Constitution has bestowed upon the people the
right to directly propose amendments to the Constitution. Such right cannot be usurped by anyone
under the guise of being the people's representative. Simply put, Section 2 does not recognize acts
of representation. For it is only "the people" (comprising the minimum of 12% 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) who are the proper parties to initiate a petition proposing
amendments to the Constitution. Verily, the petition filed with the COMELEC by herein petitioners
Lambino and Aumentado is not a people's initiative. Necessarily, it must fail.

Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and
misleading.There is no people's voice to be heard and heeded as this petition for initiative is
not truly theirs, but only of petitioners Lambino and Aumentado and their allies.

VII
The issues at bar are not political questions.

Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of
the exercise of the right of the sovereign people to amend the Constitution and their will, as
expressed by the fact that over six million registered voters indicated their support of the Petition for
initiative is a purely political question;" and (2) "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by
the people to exercise their right to propose amendments under the system of initiative is a
sovereign act and falls squarely within the ambit of a political question."

The "political question doctrine" was first enunciated by the US Supreme Court in Luther v.
Borden.37 Faced with the difficult question of whether the Supreme Court was the appropriate
institution to define the substantive content of republicanism, the US Supreme Court, speaking thru
Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the people,
as to how and whether they exercised it, was under the circumstances of the case, a political
question to be settled by the political power." In other words, the responsibility of settling certain
constitutional questions was left to the legislative and executive branches of the government.

The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to
increased migration brought about by the Industrial Revolution, the urban population of Rhode Island
increased. However, under the 1663 Royal Charter which served as the State Constitution, voting
rights were largely limited to residents of the rural districts. This severe mal-apportionment of
suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their
disenfranchisement from the state government, suffrage reformers invoked their rights under the
American Declaration of Independence to "alter or abolish" the government and to institute a new
one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a
new State Constitution, submitted the document for popular ratification, and held elections under it.
The State government, however, refused to cede power, leading to an anomalous situation in that
for a few months in 1842, there were two opposing state governments contending for legitimacy and
possession of state of offices.

The Rhode Island militia, under the authority of martial law, entered and searched the house of
Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US
Supreme Court, Luther's counsel argued that since the State's archaic Constitution prevented a fair
and peaceful address of grievances through democratic processes, the people of Rhode Island had
instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as
an oppressive government. The US Supreme Court deemed the controversy as non-justiciable
and inappropriate for judicial resolution.

In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe
situations where Federal courts should not intervene in political questions which they have neither
the competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-
3 vote branded the apportionment of legislative districts in Illinois "as a political question and that
the invalidation of the districts might, in requiring statewide elections, create an evil greater
than that sought to be remedied."

While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to
come up with a definition of the term "political question." Thus, in Vera v. Avelino,39 this Court ruled
that properly, political questions are "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government."
In Tañada and Macapagal v. Cuenco,40 the Court held that the term political question connotes, in
legal parlance, what it means in ordinary parlance, namely, a question of policy. It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.

In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in
determining whether a question before it is political, rather than judicial in nature, to wit:

1) there is a textually demonstrable constitutional commitment of the issue to a coordinate


political department; or

2) there is a lack of judicially discoverable and manageable standards for resolving it; or

3) there is the sheer impossibility of deciding the matter without an initial policy determination
of a kind clearly for non-judicial discretion; or

4) there is the sheer impossibility of the Court's undertaking an independent resolution


without expressing lack of respect due the coordinate branches of government; or

5) there is an unusual need for unquestioning adherence to a political decision already


made; or

6) there exists the potentiality of embarrassment arising from multifarious pronouncements


by various departments on one question.

None of the foregoing standards is present in the issues raised before this Court. Accordingly, the
issues are justiciable. What is at stake here is the legality and not the wisdom of the act
complained of.

Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it
is not precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1,
Article VIII of the Constitution, following Daza v. Singson.43 As pointed out in Marcos v.
Manglapus,44 the present Constitution limits resort to the political question doctrine and broadens the
scope of judicial power which the Court, under previous charters, would have normally and ordinarily
left to the political departments to decide.

CONCLUSION

In fine, considering the political scenario in our country today, it is my view that the so-called
people's initiative to amend our Constitution from bicameral-presidential to unicameral-parliamentary
is actually not an initiative of the people, but an initiative of some of our politicians. It has not been
shown by petitioners, during the oral arguments in this case, that the 6.3 million registered voters
who affixed their signatures understood what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed amendments were not explained
to all those registered voters. Indeed, there will be no means of knowing, to the point of judicial
certainty, whether they really understood what petitioners and their group asked them to sign.

Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The
Court then ruled that "This being the vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect," although it had notice that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified by the people in accordance
with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the
Citizens' Assemblies "was and is null and void ab initio." That was during martial law when perhaps
majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law
regime. There is, therefore, no reason why this Court should allow itself to be used as a legitimizing
authority by the so-called people's initiative for those who want to perpetuate themselves in power.

At this point, I can say without fear that there is nothing wrong with our present government
structure. Consequent1y, we must not change it. America has a presidential type of government.
Yet, it thrives ideally and has become a super power. It is then safe to conclude that what we
should change are some of the people running the government, NOT the SYSTEM.

According to petitioners, the proposed amendment would effect a more efficient, more economical
and more responsive government.

Is there hope that a new breed of politicians, more qualified and capable, may be elected as
members and leaders of the unicameral-parliament? Or will the present members of the Lower
House continue to hold their respective positions with limitless terms?

Will the new government be more responsive to the needs of the poor and the marginalized? Will it
be able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection
for the weak?

This is a defining moment in our history. The issue posed before us is crucial with transcendental
significance. And history will judge us on how we resolve this issue – shall we allow the revision of
our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful people's
initiative?

Amending the Constitution involving a change of government system or structure is a herculean task
affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to
more knowledgeable people elected as members of a Constitutional Convention.

Yes, the voice of the people is the voice of God. But under the circumstances in this case, the
voice of God is not audible.

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R.
No. 174299.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

____________________

EN BANC
G.R. No. 174153

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED


VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and JOHN DOE and PETER DOE, respondents.

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

SEPARATE CONCURRING OPINION

CALLEJO, SR., J.:

I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not
commit an abuse of its discretion in dismissing the amended petition before it. The proposals of
petitioners incorporated in said amended petition are for the revision of the 1987 Constitution.
Further, the amended petition before the respondent COMELEC is insufficient in substance.

The Antecedents

On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC
a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO THE 1987
CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL
PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING
ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The case was docketed
as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is
referred to as the petition for initiative.

Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with
those who have affixed their signatures to the signature sheets appended thereto who are Filipino
citizens, residents and registered voters of the Philippines, and they constitute at least twelve
percent (12%) of all the registered voters in the country, wherein each legislative district is
represented by at least three percent (3%) of all the registered voters therein.

Petitioners further alleged therein that the filing of the petition for initiative is based on their
constitutional right to propose amendments to the 1987 Constitution by way of people's initiative, as
recognized in Section 2, Article XVII thereof, which 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."

According to petitioners, while the above provision states that "(T)he Congress shall provide for the
implementation of the exercise of this right," the provisions of Section 5(b) and (c), along with
Section 7 of Republic Act (RA) 6735,1 are sufficient enabling details for the people's exercise of the
power. The said sections of RA 6735 state:

Sec. 5. Requirements. – (a) To exercise the power x x x

(b) A 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, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters
therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

(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 herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.

xxxx

Sec. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters identification cards used in the
immediately preceding election.

They also alleged that the COMELEC has the authority, mandate and obligation to give due course
to the petition for initiative, in compliance with the constitutional directive for the COMELEC to
"enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall."2

Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in
the 1987 Constitution and prayed that the COMELEC issue an order:

1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;
2. Directing the publication of the Petition in Filipino and English at least twice in newspapers
of general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by this Honorable Commission of the sufficiency of this Petition, to allow the
Filipino people to express their sovereign will on the proposition.

Petitioners pray for such other reliefs deemed just and equitable in the premises.

The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and
dismissing the petition for initiative. The COMELEC ruled that:

We agree with the petitioners that this Commission has the solemn Constitutional duty to
enforce and administer all laws and regulations relative to the conduct of, as in this case,
initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 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. x x x.

The Congress shall provide for the implementation of the exercise of this right."

The aforequoted provision of the Constitution being a non-self-executory provision needed


an enabling law for its implementation. Thus, in order to breathe life into the constitutional
right of the people under a system of initiative to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted RA
6735.

However, the Supreme Court, in the landmark case of Santiago v. Commission on


Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned

The Supreme Court, likewise, declared that this Commission should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on amendments
to the Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is
represented by at least three per centum of the registered voters therein, still the Petition
cannot be given due course since the Supreme Court categorically declared RA 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this right of the people remains
nothing but an "empty right," and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution. (Citations omitted.)

Aggrieved, petitioners elevated the case to this Court on a petition


for certiorari and mandamus under Rule 65 of the Rules of Court.

The Petitioners' Case

In support of their petition, petitioners alleged, inter alia, that:

I.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF


DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE
TO THE PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19
MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME
COURT EN BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL
VOTING ON 10 JUNE 1997, NO MAJORITY VOTE WAS SECURED TO DECLARE
REPUBLIC ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN
STANDARD.

II.

THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND
EXISTING APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS
AND AUTHORITY FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING
LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE.

III.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF


DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE
DUE COURSE TO THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS
CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING THE WILL
OF THE PEOPLE.

A.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE


INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS.

1.

THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE


PEOPLE THE POWER TO PROPOSE AMENDMENTS AND THE PEOPLE
THEMSELVES ARE NOW GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION
2.

PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997,


THE RIGHT OF THE PEOPLE TO EXERCISE THE SOVEREIGN POWER
OF INITIATIVE AND RECALL HAS BEEN INVARIABLY UPHELD

3.

THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A


POLITICAL QUESTION WHICH SHALL BE DETERMINED SOLELY BY THE
SOVEREIGN PEOPLE.

4.

BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION


FOR INITIATIVE DULY VERIFIED BY THE ELECTION OFFICERS, THE
PEOPLE HAVE CHOSEN TO PERFORM THIS SACRED EXERCISE OF
THEIR SOVEREIGN POWER.

B.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE


INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS

C.

THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY


APPLIES TO THE DELFIN PETITION.

1.

IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER


STATEMENTS IN THE BODY OF THE DECISION THAT GOVERNS THE
RIGHTS IN CONTROVERSY.

IV.

THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR


PERFORM A DUTY MANDATED BY LAW.

A.

THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR


PLEBISCITE.3

Petitioners Failed to Allege and Demonstrate All the Essential


Facts To Establish the Right to a Writ of Certiorari

Section 1, Rule 65 of the Rules of Court reads:


Sec. 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
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 annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of
Section 3, Rule 46.

A writ for certiorari may issue only when the following requirements are set out in the petition and
established:

(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-
judicial functions;

(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and

(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of
law. x x x4

The Court has invariably defined "grave abuse of discretion," thus:

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised
arbitrarily or despotically. For certiorari to lie, there must be a capricious, arbitrary and
whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with
centuries of both civil law and common law traditions.5

There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of its judgment amounting to lack of
jurisdiction. Mere abuse of discretion is not enough.6 The only question involved is jurisdiction, either
the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary
remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of judgment.7 An error of judgment
is one in which the court may commit in the exercise of its jurisdiction, which error is reversible only
by an appeal.8

In the present case, it appears from the assailed Resolution of the COMELEC that it denied the
petition for initiative solely in obedience to the mandate of this Court in Santiago v. Commission on
Elections.9 In said case, the Court En Banc permanently enjoined the COMELEC from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system. When the
COMELEC denied the petition for initiative, there was as yet no valid law enacted by Congress to
provide for the implementation of the system.
It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition
for initiative as "capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent
to lack of jurisdiction." In fact, in so doing, the COMELEC merely followed or applied, as it ought to
do, the Court's ruling in Santiago to the effect that Section 2, Article XVII of the Constitution on the
system of initiative is a non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate,
or wanting in essential terms and conditions" to implement the constitutional provision on initiative.
Consequently, the COMELEC was "permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system." The decision of the Court En Banc
interpreting RA 6735 forms part of the legal system of the Philippines.10 And no doctrine or principle
laid down by the Court En Banc may be modified or reversed except by the Court En
Banc,11 certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the
COMELEC is bound to follow the same.12 As succinctly held in Fulkerson v. Thompson:13

Whatever was before the Court, and is disposed of, is considered as finally settled. The
inferior court is bound by the judgment or decree as the law of the case, and must carry it
into execution according to the mandate. The inferior court cannot vary it, or judicially
examine it for any other purpose than execution. It can give no other or further relief as to
any matter decided by the Supreme Court even where there is error apparent; or in any
manner intermeddle with it further than to execute the mandate and settle such matters as
have been remanded, not adjudicated by the Supreme Court….

The principles above stated are, we think, conclusively established by the authority of
adjudged cases. And any further departure from them would inevitably mar the harmony of
the whole judiciary system, bring its parts into conflict, and produce therein disorganization,
disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior
courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them
into execution would be repugnant to the principles established by the constitution, and
therefore void.14

At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by
the Court therein. Like petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's
Initiative for Reforms, Modernization and Action (PIRMA), et al., invoked Section 2, Article XVII of
the Constitution as they filed with the COMELEC a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, By People's Initiative" (the Delfin petition). They asked the COMELEC to
issue an order fixing the time and date for signature gathering all over the country; causing the
necessary publications of said order and their petition in newspapers of general and local circulation
and instructing municipal election registrars in all regions all over the country and to assist
petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed
for.

Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the
COMELEC from implementing its order. The Court, speaking through Justice Hilario G. Davide, Jr.
(later Chief Justice), granted the petition as it declared:

1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned";

2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and regulations on the
conduct of initiative on amendments to the Constitution because the COMELEC is without authority
to promulgate the 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; and

3. The Delfin petition insufficient as it did not contain the required number of signatures of registered
voters.

The Court concluded in Santiago that "the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system." The
dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered:

a) GRANTING the instant petition;

b) DECLARING RA 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 December 18, 1996 is made permanent as
against the Commission on Elections, but is LIFTED as against private respondents.16

The Court reiterated its ruling in Santiago in another petition which was filed with the Court by
PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties in Santiago) docketed
as PIRMA v. Commission on Elections.17 The said petitioners, undaunted by Santiago and claiming
to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that
COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after
due hearing, that it (COMELEC) declare the petition sufficient for the purpose of scheduling a
plebiscite to amend the Constitution. Like the Delfin petition in Santiago, the PIRMA petition
proposed to submit to the people in a plebiscite the amendment to the Constitution on the lifting of
the term limits of elected officials.

The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no
basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed the PIRMA petition citing the
permanent restraining order issued against it by the Court in Santiago. PIRMA and the spouses
Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the part of
the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for
initiative to amend the Constitution.

The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses
Albert Pedrosa. The Court declared that the COMELEC merely complied with the dispositions in the
decision of the Court in Santiago and, hence, cannot be held to have committed a grave abuse of its
discretion in dismissing the petition before it:
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 Decision of this Court in
G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second
issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A.
6735. On this issue, the Chief Justice and six (6) other members of the Court, namely,
Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second
issue since the case a bar is not the proper vehicle for that purpose. Five (5) other members
of the Court, namely, Melo, Puno, Francisco, Hermosisima and Panganiban, JJ., opined that
there was need for such a re-examination. x x x

WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)

In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and
argues that the COMELEC should not have applied the ruling in Santiago to the petition for initiative
because the permanent injunction therein referred only to the Delfin petition. The OSG buttresses
this argument by pointing out that the Temporary Restraining Order dated December 18, 1996 that
was made permanent in the dispositive portion referred only to the Delfin petition.

The OSG's attempt to isolate the dispositive portion from the body of the Court's decision
in Santiago is futile. It bears stressing that the dispositive portion must not be read separately but in
connection with the other portions of the decision of which it forms a part. To get to the true intent
and meaning of a decision, no specific portion thereof should be resorted to but the same must be
considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the
decision and not merely in the fallo thereof.19

The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC
"from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the implementation of
the system" is thus as much a part of the Court's decision as its dispositive portion. The ruling of
this Court is of the nature of an in rem judgment barring any and all Filipinos from filing a
petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted. Clearly, the COMELEC, in denying due course to the present petition for initiative
on amendments to the Constitution conformably with the Court's ruling in Santiago did not commit
grave abuse of discretion. On the contrary, its actuation is in keeping with the salutary principle of
hierarchy of courts. For the Court to find the COMELEC to have abused its discretion when it
dismissed the amended petition based on the ruling of this Court in Santiago would be sheer judicial
apostasy.

As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions
all other courts should take their bearings."20 This truism applies with equal force to the COMELEC
as a quasi-judicial body for, after all, judicial decisions applying or interpreting laws or the
Constitution "assume the same authority as the statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria which must control the
actuations not only of those called upon to abide thereby but also of those duty bound to enforce
obedience thereto."21

Petitioners Cannot Ascribe


Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago

It is elementary that the opinion of the majority of the members of the Court, not the opinion of the
minority, prevails. As a corollary, the decision of the majority cannot be modified or reversed by the
minority of the members of the Court.

However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the
Court's declaration therein on the inadequacy, incompleteness and insufficiency of RA 6735 to
implement the system of initiative to propose constitutional amendments did not constitute the
majority opinion. This contention is utterly baseless.

Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the
members of the Court, who actually took part in the deliberations thereon. On the other hand, five
Justices,23 while voting for the dismissal of the Delfin petition on the ground of insufficiency,
dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to
implement the system of initiative.

Given that a clear majority of the members of the Court, eight Justices, concurred in the decision
in Santiago, the pronouncement therein that RA 6735 is "incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned"
constitutes a definitive ruling on the matter.

In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision
were denied with finality as only six Justices, or less than the majority, voted to grant the same. The
Resolution expressly stated that the motion for reconsideration failed "to persuade the requisite
majority of the Court to modify or reverse the Decision of 19 March 1977."24 In fine, the
pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive
ruling on the matter.

It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them
and to re-examine its ruling as regards RA 6735. By a vote of seven members of the Court, including
Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no need to
resolve the issue. Five members of the Court opined that there was a need for the re-examination of
said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and
binding on petitioners.

If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the
Court should have resolved to set aside its original resolution dismissing the petition and to grant the
motion for reconsideration and the petition. But the Court did not. The Court positively and
unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in
dismissing the petition before it. No less than Senior Justice Reynato S. Puno concurred with the
resolution of the Court. It behooved Justice Puno to dissent from the ruling of the Court on the
motion for reconsideration of petitioners precisely on the ground that there was no doctrine
enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V. Panganiban,
who was a member of the Court.

That RA 6735 has failed to validly implement the people's right to directly propose constitutional
amendments through the system of initiative had already been conclusively settled in Santiago as
well as in PIRMA. Heeding these decisions, several lawmakers, including no less than Solicitor
General Antonio Eduardo Nachura when he was then a member of the House of
Representatives,25 have filed separate bills to implement the system of initiative under Section 2,
Article XVII of the Constitution.

In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the
three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing for People's Initiative to
Amend the Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate Bill No. 2189
entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator
Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of
People's Initiative to Propose Amendments to the Constitution introduced by Senator Richard
Gordon.

In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed
by Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee Marcos, House
Bill No. 05025 filed by Representative Roberto Cajes, and House Bill No. 05026 filed by
Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for
People's Initiative to Amend the Constitution.

The respective explanatory notes of the said Senate and House bills uniformly recognize that there
is, to date, no law to govern the process by which constitutional amendments are introduced by the
people directly through the system of initiative. Ten (10) years after Santiago and absent the
occurrence of any compelling supervening event, i.e., passage of a law to implement the system of
initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of
the ruling therein, it behooves the Court to apply to the present case the salutary and well-
recognized doctrine of stare decisis. As earlier shown, Congress and other government agencies
have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling.

Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made
to depend on the individual opinions of the members who compose it – the Supreme Court, as an
institution, has already determined RA 6735 to be "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned" and
therefore the same remains to be so regardless of any change in the Court's composition.26 Indeed,
it is vital that there be stability in the courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-examination of determined principles
and speculate on fluctuation of the law with every change in the expounders of it.27

Proposals to Revise the Constitution,


As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments

Even granting arguendo the Court, in the present case, abandons its pronouncement
in Santiago and declares RA 6735, taken together with other extant laws, sufficient to implement the
system of initiative, still, the amended petition for initiative cannot prosper. Despite the denomination
of their petition, the proposals of petitioners to change the form of government from the present
bicameral-presidential to a unicameral-parliamentary system of government are actually for
the revision of the Constitution.

Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

"Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.

"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts."

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:

"Section 1. There shall be a President who shall be the Head of State. The executive power
shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime
Minister shall be elected by a majority of all the Members of Parliament from among
themselves. He shall be responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a


unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of
their term at noon on the thirtieth day of June 2010 and shall continue to exercise their
powers under the 1987 Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.,

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.

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 conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress," "Senate,"
"House of Representatives" and "House of Congress," "Senator[s] or "Member[s] of the
House of Representatives" and "House of Congress" shall be changed to read "Parliament";
that any and all references therein to "Member[s] of the House of Representatives" shall be
changed to read as "Member[s] of Parliament" and any and all references to the "President"
and or "Acting President" shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they
shall be deemed amended so as to conform to a unicameral Parliamentary System of
government; provided, however, that any and all references therein to "Congress," "Senate,"
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress," "Senator[s]" or
"Member[s] of the House of Parliament" and any and all references to the "President" and of
"Acting President" shall be changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its session
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of
the thirtieth day of June 2010.

(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.

"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."

(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. [Thereafter, the Vice-President, as Member of Parliament, shall immediately
convene the Parliament and shall initially preside over its session for the purpose of electing
the Prime Minister, who shall be elected by a majority vote of all its members, from among
themselves.] The duly-elected Prime Minister shall continue to exercise and perform the
powers, duties and responsibilities of the interim Prime Minister until the expiration of the
term of the incumbent President and Vice President.28

Petitioners claim that the required number of signatures of registered voters have been complied
with, i.e., the signatories to the petition constitute twelve percent (12%) of all the registered voters in
the country, wherein each legislative district is represented by at least three percent (3%) of all the
registered voters therein. Certifications allegedly executed by the respective COMELEC Election
Registrars of each municipality and city verifying these signatures were attached to the petition for
initiative. The verification was allegedly done on the basis of the list of registered voters contained in
the official COMELEC list used in the immediately preceding election.

The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to


be called for the said purpose reads:

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?29

According to petitioners, the proposed amendment of Articles VI and VII would effect a more
efficient, more economical and more responsive government. The parliamentary system would
allegedly ensure harmony between the legislative and executive branches of government, promote
greater consensus, and provide faster and more decisive governmental action.

Sections 1 and 2 of Article XVII pertinently read:

Article XVII

SECTION 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.

SECTION 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.

It can be readily gleaned that the above provisions set forth different modes and procedures for
proposals for the amendment and revision of the Constitution:

1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be
proposed by –

a. Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention.

2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly
proposed by the people through initiative.

The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and
provided for their respective modes and procedures for effecting changes of the Constitution fully
cognizant of the distinction between the two concepts. Commissioner Jose E. Suarez, the Chairman
of the Committee on Amendments and Transitory Provisions, explained:

MR. SUAREZ. One more point, and we will be through.

We mentioned the possible use of only one term and that is, "amendment." However, the
Committee finally agreed to use the terms – "amendment" or "revision" when our attention
was called by the honorable Vice-President to the substantial difference in the connotation
and significance between the said terms. As a result of our research, we came up with the
observations made in the famous – or notorious – Javellana doctrine, particularly the
decision rendered by Honorable Justice Makasiar, wherein he made the following distinction
between "amendment" and "revision" of an existing Constitution: "Revision" may involve a
rewriting of the whole Constitution. On the other hand, the act of amending a constitution
envisages a change of specific provisions only. The intention of an act to amend is not the
change of the entire Constitution, but only the improvement of specific parts or the addition of
provisions deemed essential as a consequence of new conditions or the elimination of parts
already considered obsolete or unresponsive to the needs of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely
new fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to the new
Constitution.30

Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article
XVII of the Constitution because it was their intention to reserve the power to propose a revision of
the Constitution to Congress or the constitutional convention. Stated in another manner, it was their
manifest intent that revision thereof shall not be undertaken through the system of initiative. Instead,
the revision of the Constitution shall be done either by Congress or by a constitutional convention.

It is significant to note that, originally, the provision on the system of initiative was included in Section
1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions. The original draft provided:

SEC. 1. Any amendment to, or revision of, this Constitution may be proposed:

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

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article __ Section __ of
the Constitution.31

However, after deliberations and interpellations, the members of the Commission agreed to remove
the provision on the system of initiative from Section 1 and, instead, put it under a separate
provision, Section 2. It was explained that the removal of the provision on initiative from the other
"traditional modes" of changing the Constitution was precisely to limit the former (system of initiative)
to amendments to the Constitution. It was emphasized that the system of initiative should not extend
to revision.
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 x32

The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the
system of initiative was reiterated and made clear by Commissioner Suarez in response to a
suggestion of Commissioner Felicitas Aquino:

MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4,
except that in Section 4, as it is presently drafted, there is no take-off date for the 60-day and
90-day periods.

MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing
amendments to the Constitution which would further require the process of submitting it in a
plebiscite, in which case it is not self-executing.

MR. SUAREZ. No, not unless we settle and determine the take-off period.

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 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 by the Committee.33
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with
respect to the observation of Commissioner Regalado Maambong:

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."34

After several amendments, the Commission voted in favor of the following wording of 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.

Sections 1 and 2, Article XVII as eventually worded read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(3) The Congress, upon a vote of three-fourths of all its Members; or

(4) A constitutional convention.

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.

The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation
not only between the two terms but also between two procedures and their respective fields of
application. Ineluctably, the system of initiative under Section 2, Article XVII as a mode of effecting
changes in the Constitution is strictly limited to amendments – not to a revision – thereof.

As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as
different modes of changing the fundamental law, were cognizant of the distinction between the two
terms. They particularly relied on the distinction made by Justice Felix Antonio in his concurring
opinion in Javellana v. Executive Secretary,35 the controversial decision which gave imprimatur to the
1973 Constitution of former President Ferdinand E. Marcos, as follows:

There is clearly a distinction between revision and amendment of an existing constitution.


Revision may involve a rewriting of the whole constitution. The act of amending a
constitution, on the other hand, envisages a change of only specific provisions. The intention
of an act to amend is not the change of the entire constitution, but only the improvement of
specific parts of the existing constitution of the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times. The 1973 Constitution is not a mere amendment to
the 1935 Constitution. It is a completely new fundamental charter embodying new political,
social and economic concepts.36

Other elucidation on the distinction between "amendment" and "revision" is enlightening. For
example, Dean Vicente G. Sinco, an eminent authority on political law, distinguished the two terms
in this manner:

Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revisions may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppress portions of it that seemed
obsolete, or dangerous, or misleading in their effect.37

In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the
occasion to make the distinction between the two terms with respect to Ga.L. 1945, an instrument
which "amended" the 1877 Constitution of Georgia. It explained the term "amendment:"

"Amendment" of a statute implies its survival and not destruction. It repeals or changes some
provision, or adds something thereto. A law is amended when it is in whole or in part
permitted to remain, and something is added to or taken from it, or it is in some way changed
or altered to make it more complete or perfect, or to fit it the better to accomplish the object
or purpose for which it was made, or some other object or purpose.39

On the other hand, the term "revision" was explained by the said US appellate court:

x x x When a house is completely demolished and another is erected on the same location,
do you have a changed, repaired and altered house, or do you have a new house? Some of
the materials contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have altogether another or a
new house. We conclude that the instrument as contained in Ga.L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a
completely revised or new constitution.40
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on
the distinction between the two terms thus:

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 contemplate a re-examination of the entire document – or
of provisions of the document (which have overall implications for the entire document or for
the fundamental philosophical underpinnings of the document) – to determine how and to
what extent it should be altered. Thus, for instance, a switch from the presidential system to
a parliamentary system would be a revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral system to a unicameral system
because of its effect on other important provisions of the Constitution.

It is thus clear that what distinguishes revision from amendment is not the quantum of
change in the document. Rather, it is the fundamental qualitative alteration that effects
revision. Hence, I must reject the puerile argument that the use of the plural form of
"amendments" means that a revision can be achieved by the introduction of a multiplicity of
amendments!41

Given that revision necessarily entails a more complex, substantial and far-reaching effects on the
Constitution, the framers thereof wisely withheld the said mode from the system of initiative. It should
be recalled that it took the framers of the present Constitution four months from June 2, 1986 until
October 15, 1986 to come up with the draft Constitution which, as described by the venerable
Justice Cecilia Muñoz Palma, the President of the Constitutional Commission of 1986, "gradually
and painstakingly took shape through the crucible of sustained sometimes passionate and often
exhilarating debates that intersected all dimensions of the national life."42

Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a
product of the same extensive and intensive study and debates. Consequently, while providing for a
system of initiative where the people would directly propose amendments to the Constitution, they
entrusted the formidable task of its revision to a deliberative body, the Congress or Constituent
Assembly.

The Constitution is the fundamental law of the state, containing the principles upon which the
government is founded, and regulating the division of sovereign powers, directing to what persons
each of those powers is to be confided and the manner in which it is to be exercised.43 The
Philippines has followed the American constitutional legal system in the sense that the
term constitution is given a more restricted meaning, i.e., as a written organic instrument, under
which governmental powers are both conferred and circumscribed.44

The Constitution received its force from the express will of the people. An overwhelming
16,622,111, out of 21,785,216 votes cast during the plebiscite, or 76.30% ratified the present
Constitution on February 2, 1987.45 In expressing that will, the Filipino people have incorporated
therein the method and manner by which the same can be amended and revised, and when the
electorate have incorporated into the fundamental law the particular manner in which the same may
be altered or changed, then any course which disregards that express will is a direct violation of the
fundamental law.46

Further, these provisions having been incorporated in the Constitution, where the validity of a
constitutional amendment or revision depends upon whether such provisions have been complied
with, such question presents for consideration and determination a judicial question, and the courts
are the only tribunals vested with power under the Constitution to determine such question.47

Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision,"
clearly makes a differentiation not only between the two terms but also between two procedures and
their respective fields of application. On this point, the case of McFadden v. Jordan48 is instructive. In
that case, a "purported initiative amendment" (referred to as the proposed measure) to the State
Constitution of California, then being proposed to be submitted to the electors for ratification, was
sought to be enjoined. The proposed measure, denominated as "California Bill of Rights," comprised
a single new article with some 208 subsections which would repeal or substantially alter at least 15
of the 25 articles of the California State Constitution and add at least four new topics. Among the
likely effects of the proposed measure were to curtail legislative and judicial functions, legalize
gaming, completely revise the taxation system and reduce the powers of cities, counties and courts.
The proposed measure also included diverse matters as ministers, mines, civic centers, liquor
control and naturopaths.

The Supreme Court of California enjoined the submission of the proposed measure to the electors
for ratification because it was not an "amendment" but a "revision" which could only be proposed by
a convention. It held that from an examination of the proposed measure itself, considered in relation
to the terms of the California State Constitution, it was clear that the proposed initiative enactment
amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch
as the California State Constitution specifies (Article XVIII §2 thereof) that it may be revised by
means of constitutional convention but does not provide for revision by initiative measure, the
submission of the proposed measure to the electorate for ratification must be enjoined.

As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation
required (between amendment and revision) is not merely between two words; more accurately it is
between two procedures and between their respective fields of application. Each procedure, if we
follow elementary principles of statutory construction, must be understood to have a substantial field
of application, not to be a mere alternative procedure in the same field. Each of the two words, then,
must be understood to denote, respectively, not only a procedure but also a field of application
appropriate to its procedure.49

Provisions regulating the time and mode of effecting organic changes are in the nature of safety-
valves – they must not be so adjusted as to discharge their peculiar function with too great facility,
lest they become the ordinary escape-pipes of party passion; nor, on the other hand, must they
discharge it with such difficulty that the force needed to induce action is sufficient also to explode the
machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult
in our whole system, to reconcile the requisites for progress with the requisites for safety.50

Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its
denomination, one for its revision. It purports to seek the amendment only of Articles VI and VII of
the Constitution as well as to provide transitory provisions. However, as will be shown shortly, the
amendment of these two provisions will necessarily affect other numerous provisions of the
Constitution particularly those pertaining to the specific powers of Congress and the President.
These powers would have to be transferred to the Parliament and the Prime Minister and/or
President, as the case may be. More than one hundred (100) sections will be affected or altered
thereby:

1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death
penalty for compelling reasons involving heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the
secrecy and sanctity of the ballot as well as a system for absentee voting;

3. All 32 Sections of Article VI on the Legislative Department;

4. All 23 Sections of Article VII on the Executive Department;

5. The following Sections of Article VIII (Judicial Department):

- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction


of various courts;

- Section 7 on the power of Congress to prescribe the qualifications of judges of


lower courts;

- Section 8 on the composition of Judicial Bar Council (JBC) which includes


representatives of Congress as ex officio members and on the power of the
President to appoint the regular members of the JBC;

- Section 9 on the power of the President to appoint the members of the Supreme
Court and judges of lower courts;

- Section 16 on duty of Supreme Court to make annual report to the President and
Congress.

6. The following Sections of Article IX (Constitutional Commissions);

- (B) Section 3 on duty of Civil Service Commission to make annual report to the
President and Congress;

- (B) Section 5 on power of Congress to provide by law for the standardization of


compensation of government officials;

- (B) Section 8 which provides in part that "no public officer shall accept, without the
consent of Congress, any present, emolument, etc. x x x"

- (C) Section 1 on the power of the President to appoint the Chairman and
Commissioners of the Commission on Elections with the consent of the Commission
on Appointments;

- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress


measures to minimize election spending x x x;

- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the
removal of any officer or employee it has deputized, or the imposition of any other
disciplinary action x x x;

- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and
Congress a report on the conduct of election, plebiscite, etc.;
- (C) Section 5 on the power of the President, with the favorable recommendation of
the COMELEC, to grant pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules and regulations;

- (C) Section 7 which recognizes as valid votes cast in favor of organization


registered under party-list system;

- (C) Section 8 on political parties, organizations or coalitions under the party-list


system;

- (D) Section 1 (2) on the power of the President to appoint the Chairman and
Commissioners of the Commission on Audit (COA) with the consent of the
Commission of Appointments;

- Section 4 on duty of the COA to make annual report to the President and Congress.

7. The following Sections of Article X (Local Government):

- Section 3 on the power of Congress to enact a local government code;

- Section 4 on the power of the President to exercise general supervision over local
government units (LGUs);

- Section 5 on the power of LGUs to create their own sources of income x x x,


subject to such guidelines as Congress may provide;

- Section 11 on the power of Congress to create special metropolitan political


subdivisions;

- Section 14 on the power of the President to provide for regional development


councils x x x;

- Section 16 on the power of the President to exercise general supervision over


autonomous regions;

- Section 18 on the power of Congress to enact organic act for each autonomous
region as well as the power of the President to appoint the representatives to the
regional consultative commission;

- Section 19 on the duty of the first Congress elected under the Constitution to pass
the organic act for autonomous regions in Muslim Mindanao and the Cordilleras.

8. The following Sections of Article XI (Accountability of Public Officers):

- Section 2 on the impeachable officers (President, Vice-President, etc.);

- Section 3 on impeachment proceedings (exclusive power of the House to initiate


complaint and sole power of the Senate to try and decide impeachment cases);
- Section 9 on the power of the President to appoint the Ombudsman and his
deputies;

- Section 16 which provides in part that "x x x no loans or guaranty shall be granted
to the President, Vice-President, etc.

- Section 17 on mandatory disclosure of assets and liabilities by public officials


including the President, Vice-President, etc.

9. The following Sections of Article XII (National Economy and Patrimony):

- Section 2 on the power of Congress to allow, by law, small-scale utilization of


natural resources and power of the President to enter into agreements with foreign-
owned corporations and duty to notify Congress of every contract;

- Section 3 on the power of Congress to determine size of lands of public domain;

- Section 4 on the power of Congress to determine specific limits of forest lands;

- Section 5 on the power of Congress to provide for applicability of customary laws;

- Section 9 on the power of Congress to establish an independent economic and


planning agency to be headed by the President;

- Section 10 on the power of Congress to reserve to Filipino citizens or domestic


corporations(at least 60% Filipino-owned) certain areas of investment;

- Section 11 on the sole power of Congress to grant franchise for public utilities;

- Section 15 on the power of Congress to create an agency to promote viability of


cooperatives;

- Section 16 which provides that Congress shall not, except by general law, form
private corporations;

- Section 17 on the salaries of the President, Vice-President, etc. and the power of
Congress to adjust the same;

- Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights):

- Section 1 on the mandate of Congress to give highest priority to enactment of


measures that protect and enhance the right of people x x x

- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;

- Section 18 (6) on the duty of the Commission on Human Rights to recommend to


Congress effective measures to promote human rights;
- Section 19 on the power of Congress to provide for other cases to fall within the
jurisdiction of the Commission on Human Rights.

11. The following Sections of Article XIV (Education, Science and Technology, etc.):

- Section 4 on the power of Congress to increase Filipino equity participation in


educational institutions;

- Section 6 which provides that subject to law and as Congress may provide, the
Government shall sustain the use of Filipino as medium of official communication;

- Section 9 on the power of Congress to establish a national language commission;

- Section 11 on the power of Congress to provide for incentives to promote scientific


research.

12. The following Sections of Article XVI (General Provisions):

- Section 2 on the power of Congress to adopt new name for the country, new
national anthem, etc.;

- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the
President in times of war or national emergency declared by Congress;

- Section 11 on the power of Congress to regulate or prohibit monopolies in mass


media;

- Section 12 on the power of Congress to create consultative body to advise the


President on indigenous cultural communities.

13. The following Sections of Article XVII (Amendments or Revisions):

- Section 1 on the amendment or revision of Constitution by Congress;

- Section 2 on the duty of Congress to provide for the implementation of the system
of initiative;

- Section 3 on the power of Congress to call constitutional convention to amend or


revise the Constitution.

14. All 27 Sections of Article XVIII (Transitory Provisions).

The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be
affected."51Petitioners' proposition, while purportedly seeking to amend only Articles VI and VII of the
Constitution and providing transitory provisions, will, in fact, affect, alter, replace or repeal other
numerous articles and sections thereof. More than the quantitative effects, however, the revisory
character of petitioners' proposition is apparent from the qualitative effects it will have on the
fundamental law.
I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution,
in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting
such change; whileamendment refers only to particular provisions to be added to or to be altered in
a constitution.52

For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more
comprehensive differentiation of the terms:

Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revisions may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppress portions of it that seemed
obsolete, or dangerous, or misleading in their effect.53

A change in the form of government from bicameral-presidential to unicameral-parliamentary,


following the above distinction, entails a revision of the Constitution as it will involve "alteration of
different portions of the entire document" and "may result in the rewriting of the whole constitution, or
the greater portion of it, or perhaps only some of its important provisions."

More importantly, such shift in the form of government will, without doubt, fundamentally change the
basic plan and substance of the present Constitution. The tripartite system ordained by our
fundamental law divides governmental powers into three distinct but co-equal branches: the
legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body
consisting of the House of Representatives and the Senate, is the power to make laws and to alter
them at discretion. Executive power, vested in the President who is directly elected by the people, is
the power to see that the laws are duly executed and enforced. Judicial power, vested in the
Supreme Court and the lower courts, is the power to construe and apply the law when controversies
arise concerning what has been done or omitted under it. This separation of powers furnishes a
system of checks and balances which guards against the establishment of an arbitrary or tyrannical
government.

Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved


as there is a fusion between the executive and legislative powers. Essentially, the President
becomes a mere "symbolic head of State" while the Prime Minister becomes the head of
government who is elected, not by direct vote of the people, but by the members of the Parliament.
The Parliament is a unicameral body whose members are elected by legislative districts. The Prime
Minister, as head of government, does not have a fixed term of office and may only be removed by a
vote of confidence of the Parliament. Under this form of government, the system of checks and
balances is emasculated.

Considering the encompassing scope and depth of the changes that would be effected, not to
mention that the Constitution's basic plan and substance of a tripartite system of government and the
principle of separation of powers underlying the same would be altered, if not entirely destroyed,
there can be no other conclusion than that the proposition of petitioners Lambino, et al. would
constitute a revision of the Constitution rather than an amendment or "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."54 As has been shown, the effect of the adoption of the petitioners'
proposition, rather than to "within the lines of the original instrument" constitute "an improvement or
better carry out the purpose for which it was framed," is to "substantially alter the purpose and to
attain objectives clearly beyond the lines of the Constitution as now cast."55

To paraphrase McFadden, petitioners' contention that any change less than a total one is
amendatory would reduce to the rubble of absurdity the bulwark so carefully erected and preserved.
A case might, conceivably, be presented where the question would be occasion to undertake to
define with nicety the line of demarcation; but we have no case or occasion here.

As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary
system would be a revision because of its overall impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system because of its effect on other
important provisions of the Constitution. It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative
alteration that effects revision."56

The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being
in truth and in fact a proposal for the revision thereof, is barred from the system of initiative upon any
legally permissible construction of Section 2, Article XVII of the Constitution.

The Petition for Initiative on


Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance

Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative
and that COMELEC Resolution No. 2300, as it prescribed rules and regulations on the conduct of
initiative on amendments to the Constitution, is valid, still, the petition for initiative on amendments to
the Constitution must be dismissed for being insufficient in form and substance.

Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the
following:

1. Contents or text of the proposed law sought to be enacted, approved or rejected,


amended or repealed, as the case may be;

2. The proposition;

3. The reason or reasons therefor;

4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and

6. An abstract or summary proposition in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.
Section 7 thereof requires that the signatures be verified in this wise:

SEC. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters' identification cards used in the
immediately preceding election.

The law mandates upon the election registrar to personally verify the signatures. This is a solemn
and important duty imposed on the election registrar which he cannot delegate to any other person,
even to barangay officials. Hence, a verification of signatures made by persons other than the
election registrars has no legal effect.

In patent violation of the law, several certifications submitted by petitioners showed that the
verification of signatures was made, not by the election registrars, but by barangay officials. For
example, the certification of the election officer in Lumbatan, Lanao del Sur reads in full:

LOCAL ELECTION OFFICER'S CERTIFICATION57

THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this
City/Municipality, as attested to by two (2) witnesses from the same Barangays, which is part
of the 2nd Legislative District of the Province of Lanao del Sur, the names appearing on the
attached signature sheets relative to the proposed initiative on Amendments to the 1987
Constitution, are those of bonafide resident of the saidBarangays and correspond to the
names found in the official list of registered voters of the Commission on Elections and/or
voters' affidavit and/or voters' identification cards.

It is further certified that the total number of signatures of the registered voters for the
City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed signatures
sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180).

April 2, 2006

IBRAHIM M. MACADATO
Election Officer

(Underscoring supplied)

The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim
Mindanao (ARMM) alone is shown by the certifications, similarly worded as above-quoted, of the
election registrars of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin Sinsuat,
Maguindanao;60 Matanog, Maguindanao;61 Parang, Maguindanao;62 Kabantalan,
Maguindanao;63 Upi, Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan,
Maguindanao;67 Buluan, Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang,
Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan, Maguindanao;72Talayan,
Maguindanao;73 Gen. S.K. Pendatun, Maguindanao;74 Mamasapano, Maguindanao;75 Talitay,
Maguindanao;76 Guindulungan, Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay,
Maguindanao;79 Pagagawan, Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo,
Sulu;83Maimbung, Sulu;84 Hadji Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan
Caluang, Sulu;88Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima
Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96
Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election
registrar, and by no one else, including the barangay officials. The foregoing certifications submitted
by petitioners, instead of aiding their cause, justify the outright dismissal of their petition for initiative.
Because of the illegal verifications made bybarangay officials in the above-mentioned legislative
districts, it necessarily follows that the petition for initiative has failed to comply with the requisite
number of signatures, i.e., at least twelve percent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three percent (3%) of the registered
voters therein.

Petitioners cannot disclaim the veracity of these damaging certifications because they themselves
submitted the same to the COMELEC and to the Court in the present case to support their
contention that the requirements of RA 6735 had been complied with and that their petition for
initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions
which are conclusive and binding on petitioners.97 This being the case, the Court must forthwith
order the dismissal of the petition for initiative for being, on its face, insufficient in form and
substance. The Court should make the adjudication entailed by the facts here and now, without
further proceedings, as it has done in other cases.98

It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying
on Santiago that RA 6735 is inadequate to cover initiative to the Constitution, this cannot be used to
legitimize its refusal to heed the people's will. The fact that there is no enabling law should not
prejudice the right of the sovereign people to propose amendments to the Constitution, which right
has already been exercised by 6,327,952 voters. The collective and resounding act of the particles
of sovereignty must not be set aside. Hence, the COMELEC should be ordered to comply with
Section 4, Article XVII of the 1987 Constitution via a writ of mandamus. The submission of
petitioners, however, is unpersuasive.

Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the
persons of a public duty most especially when mandated by the Constitution.99 However, under
Section 3, Rule 65 of the 1997 Rules of Court, for a petition for mandamus to prosper, it must be
shown that the subject of the petition is a ministerial act or duty and not purely discretionary on the
part of the board, officer or person, and that petitioner has a well-defined, clear and certain right to
warrant the grant thereof. A purely ministerial act or duty is one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the propriety or impropriety of the act
done. If the law imposes a duty upon a public official and gives him the right to decide how or when
the duty should be performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of an official discretion nor
judgment.100

To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to
warrant the grant thereof.101 In this case, petitioners failed to establish their right to a writ
of mandamus as shown by the foregoing disquisitions.

Remand of the Case to the


COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied
with the requisite number of signatures of at least twelve percent (12%) of the total number of
registered voters, of which every legislative district must be represented by at least three percent
(3%) of the registered voters therein, involves contentious facts. The dissenting opinion cites the
petitioners' claim that they have complied with the same while the oppositors-intervenors have
vigorously refuted this claim by alleging, inter alia, that the signatures were not properly verified or
were not verified at all. Other oppositors-intervenors have alleged that the signatories did not fully
understand what they have signed as they were misled into signing the signature sheets.

According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance
with the requirements of RA 6735 on initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance. It thus remands the case to the COMELEC for
further proceedings.

To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA
6735, as well as in COMELEC Resolution No. 2300, granting that it is valid to implement the former
statute, that authorizes the COMELEC to conduct any kind of hearing, whether full-blown or trial-type
hearing, summary hearing or administrative hearing, on a petition for initiative.

Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under
the control and supervision of the Commission in accordance with Article III hereof." Pertinently,
Sections 30, 31 and 32 of Article III of the said implementing rules provide as follows:

Sec. 30. Verification of signatures. – The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters' identification cards used in the
immediately preceding election.

Sec. 31. Determination by the Commission. – The Commission shall act on the findings of
the sufficiency or insufficiency of the petition for initiative or referendum.

If it should appear that the required number of signatures has not been obtained, the petition
shall be deemed defeated and the Commission shall issue a declaration to that effect.

If it should appear that the required number of signatures has been obtained, the
Commission shall set the initiative or referendum in accordance with the succeeding
sections.

Sec. 32. Appeal. – The decision of the Commission on the findings of the sufficiency and
insufficiency of the petition for initiative or referendum may be appealed to the Supreme
Court within thirty (30) days from notice hereof.

Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any
kind of hearing to receive any evidence for or against the sufficiency of the petition for initiative.
Rather, the foregoing rules require of the COMELEC to determine the sufficiency or insufficiency of
the petition for initiative on its face. And it has already been shown, by the annexes submitted by the
petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of
the case to the COMELEC for reception of evidence of the parties on the contentious factual issues
is, in effect, an amendment of the abovequoted rules of the COMELEC by this Court which the Court
is not empowered to do.

The Present Petition Presents a


Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political questions refer to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.102 A political question has two
aspects: (1) those matters that are to be exercised by the people in their primary political capacity;
and (2) matters which have been specifically designated to some other department or particular
office of the government, with discretionary power to act.103

In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice
Reynato S. Puno explained the doctrine of political question vis-à-vis the express mandate of the
present Constitution for the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the Government:

In the Philippine setting, there is more compelling reason for courts to categorically reject the
political question defense when its interposition will cover up abuse of power. For Section 1,
Article VIII of our Constitution was intentionally cobbled to empower courts "... to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." This power is
new and was not granted to our courts in the 1935 and 1972 Constitutions. It was also not
xeroxed from the US Constitution or any foreign state constitution. The CONCOM
[Constitutional Commission] granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded from
judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former
Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking
powers of the judiciary vis-à-vis the Executive and the Legislative departments of
government. In cases involving the proclamation of martial law and suspension of the
privilege of habeas corpus, it is now beyond dubiety that the government can no longer
invoke the political question defense.

xxxx

To a great degree, it diminished its [political question doctrine] use as a shield to protect
other abuses of government by allowing courts to penetrate the shield with new power to
review acts of any branch or instrumentality of the government ". . . to determine whether or
not there has been grave abuse of discretion amounting to lack or excess of jurisdiction."

Even if the present petition involves the act, not of a governmental body, but of purportedly more
than six million registered voters who have signified their assent to the proposal to amend the
Constitution, the same still constitutes a justiciable controversy, hence, a non-political question.
There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner or
method to effect amendments thereto, or revision thereof. The question, therefore, of whether there
has been compliance with the terms of the Constitution is for the Court to pass upon.105

In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised
jurisdiction over the petition questioning the result of the general election holding that "an
examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments." The
cases cited were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among
other cases.

There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them."111 However, I find to be tenuous
the asseveration that "the argument that the people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty in its head. At the very least, the
submission constricts the democratic space for the exercise of the direct sovereignty of the
people."112 In effect, it is theorized that despite the unambiguous text of Section 2, Article XVII of the
Constitution withholding the power to revise it from the system of initiative, the people, in their
sovereign capacity, can conveniently disregard the said provision.

I strongly take exception to the view that the people, in their sovereign capacity, can disregard the
Constitution altogether. Such a view directly contravenes the fundamental constitutional theory that
while indeed "the ultimate sovereignty is in the people, from whom springs all legitimate authority";
nonetheless, "by the Constitution which they establish, they not only tie up the hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the whole people as
an aggregate body, are at liberty to take action in opposition to this fundamental law."113 The
Constitution, it should be remembered, "is the protector of the people, placed on guard by them to
save the rights of the people against injury by the people."114 This is the essence of constitutionalism:

Through constitutionalism we placed limits on both our political institutions and ourselves,
hoping that democracies, historically always turbulent, chaotic and even despotic, might now
become restrained, principled, thoughtful and just. So we bound ourselves over to a law that
we made and promised to keep. And though a government of laws did not displace
governance by men, it did mean that now men, democratic men, would try to live by their
word.115

Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to
amend to the Constitution, and does not extend to its revision. The Filipino people have bound
themselves to observe the manner and method to effect the changes of the Constitution. They opted
to limit the exercise of the right to directly propose amendments to the Constitution through initiative,
but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect
the revision thereof, contravenes the Constitution. The fundamental law of the state prescribes the
limitations under which the electors of the state may change the same, and, unless such course is
pursued, the mere fact that a majority of the electors are in favor of a change and have so expressed
themselves, does not work a change. Such a course would be revolutionary, and the Constitution of
the state would become a mere matter of form.116

The very term Constitution implies an instrument of a permanent and abiding nature, and the
provisions contained therein for its revision indicated 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.117

The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of
the Constitution. The Court is mandated to ensure that these safety valves embodied in the
Constitution to guard against improvident and hasty changes thereof are not easily trifled with. To be
sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that it is "a good
Constitution" and in the words of the learned Judge Cooley:

x x x should be beyond the reach of temporary excitement and popular caprice or passion. It
is needed for stability and steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot blood, but the sober second
thought, which alone, if the government is to be safe, can be allowed efficiency. Changes in
government are to be feared unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily succeed evil; another evil
may succeed and worse.118
Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I
have approached and grappled with them with full appreciation of the responsibilities involved in the
present case, and have given to its consideration the earnest attention which its importance
demands. I have sought to maintain the supremacy of the Constitution at whatever hazard. I share
the concern of Chief Justice Day in Koehler v. Hill:119 "it is for the protection of minorities that
constitutions are framed. Sometimes constitutions must be interposed for the protection of majorities
even against themselves. Constitutions are adopted in times of public repose, when sober reason
holds her citadel, and are designed to check the surging passions in times of popular excitement.
But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions
would become mere 'ropes of sand,' and there would be an end of social security and of
constitutional freedom. The cause of temperance can sustain no injury from the loss of this
amendment which would be at all comparable to the injury to republican institutions which a violation
of the constitution would inflict. That large and respectable class of moral reformers which so justly
demands the observance and enforcement of law, cannot afford to take its first reformatory step by a
violation of the constitution. How can it consistently demand of others obedience to a constitution
which it violates itself? The people can in a short time re-enact the amendment. In the manner of a
great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican
freedom. The young men coming forward upon the stage of political action must be educated to
venerate it; those already upon the stage must be taught to obey it. Whatever interest may be
advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no sacrilegious
hand must be laid upon the constitution."120

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R.
No. 174299.

ROMEO J. CALLEJO, SR.


Associate Justice

____________________

EN BANC

G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and

G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET
AL.).

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

SEPARATE OPINION

AZCUNA, J.:

"Why, friends, you go to do you know not what."

-- Shakespeare, Julius Caesar, Act III, Sc. 2.

Article XVII of the Constitution states:

AMENDMENTS OR REVISIONS
Section 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 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 votes 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.

Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question of
calling such a convention.

Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.

This Article states the procedure for changing the Constitution.

Constitutions have three parts – the Constitution of Liberty, which states the fundamental rights of
the people; the Constitution of Government, which establishes the structure of government, its
branches and their operation; and the Constitution of Sovereignty, which provides how the
Constitution may be changed.

Article XVII is the Constitution of Sovereignty.

As a result, the powers therein provided are called constituent powers. So when Congress acts
under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent
body exercising constituent powers.

The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply
strictly, to the actions taken under Article XVII.

Accordingly, since Article XVII states that Congress shall provide for the implementation of the
exercise of the people's right directly to propose amendments to the Constitution through initiative,
the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent
act.
As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to
propose a law or amendments to the Constitution is, with respect to the right to propose
amendments to the Constitution, a constituent measure, not a mere legislative one.

The consequence of this special character of the enactment, insofar as it relates to proposing
amendments to the Constitution, is that the requirements for statutory enactments, such as
sufficiency of standards and the like, do not and should not strictly apply. As long as there is a
sufficient and clear intent to provide for the implementation of the exercise of the right, it should be
sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution.

Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing
amendments to the Constitution, can and should be upheld, despite shortcomings perhaps in
legislative headings and standards.

For this reason, I concur in the view that Santiago v. Comelec1 should be re-examined and, after
doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure
to sustain a people's initiative to amend the Constitution should be reconsidered in favor of allowing
the exercise of this sovereign right.

And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice J.B.L. Reyes, in
relation to Article 8 of the Civil Code, that a decision of this Court interpreting a law forms part of the
law interpreted as of the time of its enactment, Republic Act No. 6735 should be deemed sufficient
and adequate from the start.

This next point to address, there being a sufficient law, is whether the petition for initiative herein
involved complies with the requirements of that law as well as those stated in Article XVII of the
Constitution.

True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to


emphasize precisely that there are instances recognized and provided for in the Constitution where
our people directly exercise their sovereign powers, new features set forth in this People Power
Charter, namely, the powers of recall, initiative and referendum.

Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This
equally important point is emphasized in the very Preamble to the Constitution, which states:

". . . the blessings of . . . democracy under the rule of law . . . ."

Such is the case with respect to the power to initiate changes in the Constitution. The power is
subject to limitations under the Constitution itself, thus: The power could not be exercised for the first
five years after the Constitution took effect and thereafter can only be exercised once every five
years; the power only extends to proposing amendments but not revisions; and the power needs an
act of Congress providing for its implementation, which act is directed and mandated.

The question, therefore, arises whether the proposed changes in the Constitution set forth in the
petition for initiative herein involved are mere amendments or rather are revisions.

Revisions are changes that affect the entire Constitution and not mere parts of it.

The reason why revisions are not allowed through direct proposals by the people through initiative is
a practical one, namely, there is no one to draft such extensive changes, since 6.3 million people
cannot conceivably come up with a single extensive document through a direct proposal from each
of them. Someone would have to draft it and that is not authorized as it would not be a direct
proposal from the people. Such indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a Constitutional Convention created
under the same provision. Furthermore, there is a need for such deliberative bodies for revisions
because their proceedings and debates are duly and officially recorded, so that future cases of
interpretations can be properly aided by resort to the record of their proceedings.

Even a cursory reading of the proposed changes contained in the petition for initiative herein
involved will show on its face that the proposed changes constitute a revision of the Constitution.
The proposal is to change the system of government from that which is bicameral-presidential to one
that is unicameral-parliamentary.

While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of
the proposed changes themselves state, every provision of the Constitution will have to be examined
to see if they conform to the nature of a unicameral-parliamentary form of government and changed
accordingly if they do not so conform to it. For example, Article VIII on Judicial Department cannot
stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus
the Court's power to declare its act a grave abuse of discretion and thus void would be an anomaly.

Now, who is to do such examination and who is to do such changes and how should the changes be
worded? The proposed initiative does not say who nor how.

Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers
from being incomplete and insufficient on its very face.

It, therefore, in that form, cannot pass muster the very limits contained in providing for the power
under the Constitution.

Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than
one subject shall be proposed as an amendment or amendments to the Constitution. The petition
herein would propose at the very least two subjects – a unicameral legislature and a parliamentary
form of government. Again, for this clear and patent violation of the very act that provides for the
exercise of the power, the proposed initiative cannot lie.

This does not mean, however, that all is lost for petitioners.

For the proposed changes can be separated and are, in my view, separable in nature – a unicameral
legislature is one; a parliamentary form of government is another. The first is a mere amendment
and contains only one subject matter. The second is clearly a revision that affects every article and
every provision in the Constitution to an extent not even the proponents could at present fully
articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of
which they do not as yet know exactly what.

The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature
from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable.
The text of the changes needed to carry it out are perfunctory and ministerial in nature. Once it is
limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which
are practically automatic and non-discretionary.

As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if
we were to change Congress from one consisting of the Senate and the House of Representatives
to one consisting only of the House of Representatives. It only affects Article VI on the Legislative
Department, some provisions on Article VII on the Executive Department, as well as Article XI on the
Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere
amendments, substantial ones indeed but still only amendments, and they address only one subject
matter.

Such proposal, moreover, complies with the intention and rationale behind the present initiative,
which is to provide for simplicity and economy in government and reduce the stalemates that often
prevent needed legislation.

For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an
appropriate initiative to propose amendments to the Constitution to change Congress into a
unicameral body. This is not say that I favor such a change. Rather, such a proposal would come
within the purview of an initiative allowed under Article XVII of the Constitution and its implementing
Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in
their sovereign capacity. After all is said and done, this is what democracy under the rule of law is
about.

ADOLFO S. AZCUNA
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED


VOTERS
vs.
THE COMMISSION ON ELECTIONS

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG


vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter Doe

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

"It is a Constitution we are expounding…"1

– Chief Justice John Marshall

DISSENTING OPINION

PUNO, J.:
The petition at bar is not a fight over molehills. At the crux of the controversy is the critical
understanding of thefirst and foremost of our constitutional principles — "the Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them."2 Constitutionalism dictates that this creed must be respected with deeds; our
belief in its validity must be backed by behavior.

This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission
on Elections (COMELEC) dated August 31, 2006, denying due course to the Petition for Initiative
filed by petitioners Raul L. Lambino and Erico B. Aumentado in their own behalf and together with
some 6.3 million registered voters who have affixed their signatures thereon, and praying for the
issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for
the ratification of the proposed amendments to the Constitution in accordance with Section 2, Article
XVII of the 1987 Constitution.

First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's
Initiative sought to exercise the sovereign people's power to directly propose amendments to the
Constitution through initiative under Section 2, Article XVII of the 1987 Constitution. Its founding
member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It
proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X
of the 1987 Constitution by deleting the provisions on the term limits for all elective officials.

The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and
would be formally filed with the COMELEC after it is signed by at least twelve per cent (12%) of the
total number of registered voters in the country. It thus sought the assistance of the COMELEC in
gathering the required signatures by fixing the dates and time therefor and setting up
signature stations on the assigned dates and time. The petition prayed that the COMELEC issue
an Order (1) fixing the dates and time for signature gathering all over the country; (2) causing the
publication of said Order and the petition for initiative in newspapers of general and local circulation;
and, (3) instructing the municipal election registrars in all the regions of the Philippines to assist
petitioner and the volunteers in establishing signing stations on the dates and time designated for
the purpose.

The COMELEC conducted a hearing on the Delfin Petition.

On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin filed a special civil action for prohibition before this Court, seeking to restrain the COMELEC
from further considering the Delfin Petition. They impleaded as respondents the COMELEC, Delfin,
and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in
signature gathering to support an initiative to amend the Constitution. They argued that the
constitutional provision on people's initiative may only be implemented by a law passed by
Congress; that no such law has yet been enacted by Congress; that Republic Act No. 6735 relied
upon by Delfin does not cover the initiative to amend the Constitution; and that COMELEC
Resolution No. 2300, the implementing rules adopted by the COMELEC on the conduct of initiative,
was ultra vires insofar as the initiative to amend the Constitution was concerned. The case was
docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.3

Pending resolution of the case, the Court issued a temporary restraining order enjoining the
COMELEC from proceeding with the Delfin Petition and the Pedrosas from conducting a signature
drive for people's initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for prohibition. The Court
ruled that the constitutional provision granting the people the power to directly amend the
Constitution through initiative is not self-executory. An enabling law is necessary to implement the
exercise of the people's right. Examining the provisions of R.A. 6735, a majority of eight (8)
members of the Court held that said law was "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is
concerned,"4 and thus voided portions of COMELEC Resolution No. 2300 prescribing rules and
regulations on the conduct of initiative on amendments to the Constitution. It was also held that even
if R.A. 6735 sufficiently covered the initiative to amend the Constitution and COMELEC Resolution
No. 2300 was valid, theDelfin Petition should still be dismissed as it was not the proper initiatory
pleading contemplated by law. Under Section 2, Article VII of the 1987 Constitution and Section
5(b) of R.A. 6735, a petition for initiative on the Constitution must be signed by at least twelve per
cent (12%) of the total number of registered voters, of which every legislative district is represented
by at least three per cent (3%) of the registered voters therein. The Delfin Petition did not contain
signatures of the required number of voters. The decision stated:

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 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 against
the Commission on Elections, but is LIFTED as against private respondents.5

Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente),
Chief Justice Andres R. Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P.
Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres,
fully concurred in the majority opinion.
While all the members of the Court who participated in the deliberation6 agreed that the Delfin
Petition should be dismissed for lack of the required signatures, five (5) members, namely,
Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and
Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's
right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly
provided the details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand,
opined that the Court should confine itself to resolving the issue of whether the Delfin Petition
sufficiently complied with the requirements of the law on initiative, and there was no need to rule
on the adequacy of R.A. 6735.

The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's
decision.

After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members
maintained their position that R.A. 6735 was inadequate to implement the provision on the initiative
on amendments to the Constitution. Justice Torres filed an inhibition, while Justice Hermosisima
submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently covers
the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who
participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate
Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of
merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco,
Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the
matter was not ripe for judicial adjudication. The motions for reconsideration were therefore denied
for lack of sufficient votes to modify or reverse the decision of March 19, 1997.8

On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments
to the Constitution (PIRMA Petition). The PIRMA Petition was supported by around five (5) million
signatures in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and prayed that the
COMELEC, among others: (1) cause the publication of the petition in Filipino and English at least
twice in newspapers of general and local circulation; (2) order all election officers to verify the
signatures collected in support of the petition and submit these to the Commission; and (3) set the
holding of a plebiscite where the following proposition would be submitted to the people for
ratification:

Do you approve amendments to the 1987 Constitution giving the President the chance to be
reelected for another term, similarly with the Vice-President, so that both the highest officials
of the land can serve for two consecutive terms of six years each, and also to lift the term
limits for all other elective government officials, thus giving Filipino voters the freedom of
choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and
Section 8 of Article X, respectively?

The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by
the Court in Santiago v. COMELEC.

PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the
COMELEC Resolution dismissing its petition for initiative. PIRMA argued that the Court's decision on
the Delfin Petition did not bar the COMELEC from acting on the PIRMA Petition as said ruling was
not definitive based on the deadlocked voting on the motions for reconsideration, and because there
was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court
to reexamine its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its resolution dated September
23, 1997. It explained:

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 Decision of this Court in
G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second
issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A.
6735. On this issue, the Chief Justice and six (6) other members of the Court, namely,
Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second
issue since the case at bar is not the proper vehicle for that purpose. Five (5) other members
of the Court, namely, Melo, Puno, Francisco, Hermosisima, and Panganiban, JJ., opined that
there was a need for such a re-examination x x x x9

In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the
PIRMA petition was dismissed on the ground of res judicata.

Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of
initiative to amend the Constitution, this time to change the form of government from bicameral-
presidential to unicameral-parliamentary system.

Let us look at the facts of the petition at bar with clear eyes.

On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the
Philippines(ULAP), embarked on a nationwide drive to gather signatures to support the move to
adopt the parliamentary form of government in the country through charter change. They proposed
to amend the Constitution as follows:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by
law, to be apportioned among the provinces, representative districts, and cities in
accordance with the number of their respective inhabitants, with at least three
hundred thousand inhabitants per district, and on the basis of a uniform and
progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at


least twenty-five years old on the day of the election, a resident of his district for at
least one year prior thereto, and shall be elected by the qualified voters of his district
for a term of five years without limitation as to the number thereof, except those
under the party-list system which shall be provided for by law and whose number
shall be equal to twenty per centum of the total membership coming from the
parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to
read, as follows:
Section 1. There shall be a President who shall be the Head of State. The executive
power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The
Prime Minister shall be elected by a majority of all the Members of Parliament from
among themselves. He shall be responsible to the Parliament for the program of
government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to


a unicameral-Parliamentary form of government, there shall be a new Article XVIII,
entitled "Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the
expiration of their term at noon on the thirtieth day of June 2010 and shall continue to
exercise their powers under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.

(2) In case of death, permanent disability, resignation or removal from office of the
incumbent President, the incumbent Vice President shall succeed as President. In
case of death, permanent disability, resignation or removal from office of both the
incumbent President and Vice President, the interim Prime Minister shall assume all
the powers and responsibilities of Prime Minister under Article VII as amended.

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
conform with a unicameral parliamentary form of government; provided, however,
that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament;"
that any and all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the "President" and/or
"Acting President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which
are hereby deleted, all other Sections of Article VII shall be retained and renumbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with
Section 1 hereof, in which case they shall be deemed amended so as to conform to a
unicameral Parliamentary System of government; provided, however, that any all
references therein to "Congress," "Senate," "House of Representatives" and "Houses
of Congress" shall be changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as "Member(s) of Parliament" and any
and all references to the "President" and or "Acting President" shall be changed to
read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall
have been elected and shall have qualified. It shall be composed of the incumbent
Members of the Senate and the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament


until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet
and shall head a ministry. He shall initially convene the interim Parliament and shall
preside over its sessions for the election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all the members of the interim
Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until
noon of the thirtieth day of June 2010.

(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.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate,
from among the members of the interim Parliament, an interim Prime Minister, who
shall be elected by a majority vote of the members thereof. The interim Prime
Minister shall oversee the various ministries and shall perform such powers and
responsibilities as may be delegated to him by the incumbent President."

(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. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime
Minister until the expiration of the term of the incumbent President and Vice
President.10

Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the
abstract of the proposed amendments, to wit:

Abstract: 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?

The signature sheets were distributed nationwide to affiliated non-government organizations and
volunteers of Sigaw ng Bayan, as well as to the local officials. Copies of the draft petition for initiative
containing the proposition were also circulated to the local officials and multi-sectoral groups.

Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25
and 26, 2006, to inform the people and explain to them the proposed amendments to the
Constitution. Thereafter, they circulated the signature sheets for signing.

The signature sheets were then submitted to the local election officers for verification based on
the voters' registration record. Upon completion of the verification process, the respective local
election officers issued certifications to attest that the signature sheets have been verified. The
verified signature sheets were subsequently transmitted to the office of Sigaw ng Bayan for the
counting of the signatures.

On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the
COMELEC a Petition for Initiative to Amend the Constitution entitled "In the Matter of Proposing
Amendments to the 1987 Constitution through a People's Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and
Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary
System." They filed an Amended Petition on August 30, 2006 to reflect the text of the proposed
amendment that was actually presented to the people. They alleged that they were filing the petition
in their own behalf and together with some 6.3 million registered voters who have affixed their
signatures on the signature sheets attached thereto. Petitioners appended to the petition signature
sheets bearing the signatures of registered voters which they claimed to have been verified by the
respective city or municipal election officers, and allegedly constituting at least twelve per cent (12%)
of all registered voters in the country, wherein each legislative district is represented by at least three
per cent (3%) of all the registered voters therein.

As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and
(c), together with Section 7 of R.A. 6735, provide sufficient enabling details for the people's
exercise of the power. Hence, petitioners prayed that the COMELEC issue an Order:

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers
of general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.

Several groups filed with the COMELEC their respective oppositions to the petition for
initiative, among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon
III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.,
Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmeña III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald
Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A.
Lat, Antonio L. Salvador, and Randall C. Tabayoyong.

On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this
Court's ruling in Santiago v. COMELEC11 permanently enjoining the Commission from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system.

Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying
that the Court set aside the August 31, 2006 resolution of the COMELEC, direct respondent
COMELEC to comply with Section 4, Article XVII of the Constitution, and set the date of the
plebiscite. They state the following grounds in support of the petition:
I.

The Honorable public respondent COMELEC committed grave abuse of discretion in


refusing to take cognizance of, and to give due course to the petition for initiative, because
the cited Santiago ruling of 19 March 1997 cannot be considered the majority opinion of the
Supreme Court en banc, considering that upon its reconsideration and final voting on 10
June 1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate,
incomplete and insufficient in standard.

II.

The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing
appropriation of the COMELEC provide for sufficient details and authority for the exercise of
people's initiative, thus, existing laws taken together are adequate and complete.

III.

The Honorable public respondent COMELEC committed grave abuse of discretion in


refusing to take cognizance of, and in refusing to give due course to the petition for initiative,
thereby violating an express constitutional mandate and disregarding and contravening the
will of the people.

A.

Assuming in arguendo that there is no enabling law, respondent COMELEC cannot


ignore the will of the sovereign people and must accordingly act on the petition for
initiative.

1.

The framers of the Constitution intended to give the people the power to
propose amendments and the people themselves are now giving vibrant life
to this constitutional provision.

2.

Prior to the questioned Santiago ruling of 19 March 1997, the right of the
people to exercise the sovereign power of initiative and recall has been
invariably upheld.

3.

The exercise of the initiative to propose amendments is a political question


which shall be determined solely by the sovereign people.

4.

By signing the signature sheets attached to the petition for initiative duly
verified by the election officers, the people have chosen to perform this
sacred exercise of their sovereign power.
B.

The Santiago ruling of 19 March 1997 is not applicable to the instant petition for
initiative filed by the petitioners.

C.

The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin
petition.

1.

It is the dispositive portion of the decision and not other statements in the
body of the decision that governs the rights in controversy.

IV.

The Honorable public respondent failed or neglected to act or perform a duty


mandated by law.

A.

The ministerial duty of the COMELEC is to set the initiative for


plebiscite.12

The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L.


Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law
Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante Gabriela, Gabriela
Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Dr.
Darby Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and
Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P.
Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja,
and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved
to intervene in this case and filed their respective Oppositions/Comments-in-Intervention.

The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon,
Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the
Integrated Bar of the Philippines Cebu City and Cebu Province Chapters; former President Joseph
Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines, represented by
Senate President Manuel Villar, Jr., also filed their respective motions for intervention and
Comments-in-Intervention.

The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L.
Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and General Workers
Organization, and Victorino F. Balais likewise moved to intervene and submitted to the Court a
Petition-in-Intervention. All interventions and oppositions were granted by the Court.

The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of
discretion in denying due course to the petition for initiative as it merely followed this Court's ruling
in Santiago v. COMELECas affirmed in the case of PIRMA v. COMELEC, based on the principle
of stare decisis; that there is no sufficient law providing for the authority and the details for the
exercise of people's initiative to amend the Constitution; that the proposed changes to the
Constitution are actually revisions, not mere amendments; that the petition for initiative does not
meet the required number of signatories under Section 2, Article XVII of the 1987 Constitution; that it
was not shown that the people have been informed of the proposed amendments as there was
disparity between the proposal presented to them and the proposed amendments attached to the
petition for initiative, if indeed there was; that the verification process was done ex parte, thus
rendering dubious the signatures attached to the petition for initiative; and that petitioners Lambino
and Aumentado have no legal capacity to represent the signatories in the petition for initiative.

The Office of the Solicitor General (OSG), in compliance with the Court's resolution of September
5, 2006, filed its Comment to the petition. Affirming the position of the petitioners, the OSG prayed
that the Court grant the petition at bar and render judgment: (1) declaring R.A. 6735 as adequate to
cover or as reasonably sufficient to implement the system of initiative on amendments to the
Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as
valid the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or amendments to
the Constitution; (3) setting aside the assailed resolution of the COMELEC for having been rendered
with grave abuse of discretion amounting to lack or excess of jurisdiction; and, (4) directing the
COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A.
6735, COMELEC Resolution No. 2300, and other pertinent election laws and regulations.

The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is
not tainted with grave abuse of discretion as it merely adhered to the ruling of this Court in Santiago
v. COMELEC which declared that R.A. 6735 does not adequately implement the constitutional
provision on initiative to amend the Constitution. It invoked the permanent injunction issued by the
Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the
Constitution until a valid enabling law shall have been passed by Congress. It asserted that the
permanent injunction covers not only the Delfin Petition, but also all other petitions involving
constitutional initiatives.

On September 26, 2006, the Court heard the case. The parties were required to argue on the
following issues:13

1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition
in behalf of the more than six million voters who allegedly signed the proposal to amend the
Constitution.

2. Whether the Petitions for Initiative filed before the Commission on Elections complied with
Section 2, Article XVII of the Constitution.

3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March 19,
1997) bars the present petition.

4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no
sufficient law implementing or authorizing the exercise of people's initiative to amend the
Constitution.

5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the
COMELEC have complied with its provisions.

5.1 Whether the said petitions are sufficient in form and substance.
5.2 Whether the proposed changes embrace more than one subject matter.

6. Whether the proposed changes constitute an amendment or revision of the Constitution.

6.1 Whether the proposed changes are the proper subject of an initiative.

7. Whether the exercise of an initiative to propose amendments to the Constitution is a


political question to be determined solely by the sovereign people.

8. Whether the Commission on Elections committed grave abuse of discretion in dismissing


the Petitions for Initiative filed before it.

With humility, I offer the following views to these issues as profiled:

Petitioners Lambino and Aumentado are proper parties to file the present Petition in
behalf of the more than six million voters who allegedly signed the proposal to amend
the Constitution.

Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties
to file the instant petition as they were not authorized by the signatories in the petition for initiative.

The argument deserves scant attention. The Constitution requires that the petition for initiative
should be filed by at least twelve per cent (12%) of all registered voters, of which every legislative
district must be represented by at least three per cent (3%) of all the registered voters therein. The
petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied by
voluminous signature sheets which prima facie show the intent of the signatories to support the
filing of said petition. Stated above their signatures in the signature sheets is the following:

x x x My signature herein which shall form part of the petition for initiative to amend the
Constitution signifies my support for the filing thereof.14

There is thus no need for the more than six (6) million signatories to execute separate documents to
authorize petitioners to file the petition for initiative in their behalf.

Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition
for certiorari and mandamus before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides
who may file a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65 read:

SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court x x x x.

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station x x x and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court x x x x.
Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may
file a petition for certiorari or mandamus before the appropriate court. Certainly, Lambino and
Aumentado, as among the proponents of the petition for initiative dismissed by the COMELEC, have
the standing to file the petition at bar.

II

The doctrine of stare decisis does not bar the reexamination of Santiago.

The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb
the calm." The doctrine started with the English Courts.15 Blackstone observed that at the beginning
of the 18th century, "it is an established rule to abide by former precedents where the same points
come again in litigation."16 As the rule evolved, early limits to its application were recognized: (1)
it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority
developed conflicting decisions; and, (3) the binding force of the decision was the "actual principle or
principles necessary for the decision; not the words or reasoning used to reach the decision."17

The doctrine migrated to the United States. It was recognized by the framers of the U.S.
Constitution.18 According to Hamilton, "strict rules and precedents" are necessary to prevent
"arbitrary discretion in the courts."19Madison agreed but stressed that "x x x once the precedent
ventures into the realm of altering or repealing the law, it should be rejected."20 Prof. Consovoy
well noted that Hamilton and Madison "disagreeabout the countervailing policy considerations that
would allow a judge to abandon a precedent."21 He added that their ideas "reveal a deep internal
conflict between the concreteness required by the rule of law and the flexibility demanded in error
correction. It is this internal conflict that the Supreme Court has attempted to deal with for
over two centuries."22

Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare
decisisdeveloped its own life in the United States. Two strains of stare decisis have been isolated
by legal scholars.23The first, known as vertical stare decisis deals with the duty of lower courts to
apply the decisions of thehigher courts to cases involving the same facts. The second, known
as horizontal stare decisis requires thathigh courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare decisishas been viewed as
an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not
a command.24 Indeed, stare decisis is not one of the precepts set in stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis — constitutional stare
decisis andstatutory stare decisis.25 Constitutional stare decisis involves judicial interpretations
of the Constitution whilestatutory stare decisis involves interpretations of statutes. The distinction
is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional
litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still
holds sway today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and
inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or
departed from, is a question entirely within the discretion of the court, which is again called upon
to consider a question once decided."26 In the same vein, the venerable Justice Frankfurteropined:
"the ultimate touchstone of constitutionality is the Constitution itself and not what we have said
about it."27 In contrast, the application of stare decisis on judicial interpretation of statutes is more
inflexible. AsJustice Stevens explains: "after a statute has been construed, either by this Court or
by a consistent course of decision by other federal judges and agencies, it acquires a meaning that
should be as clear as if the judicial gloss had been drafted by the Congress itself."28 This stance
reflects both respect for Congress' role and the need to preserve the courts' limited resources.
In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare decisis rule where30 (1) its application
perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social
and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the
hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that
respect stare decisis are stuck agreeing with them.

In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases.31 The most famous of these reversals is Brown v. Board of
Education32 which junkedPlessy v. Ferguson's33 "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public transportation. In Brown,
the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by
freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has likewise refused to be
straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos,34 we reversed our original ruling that certain provisions of the Mining Law
are unconstitutional. Similarly, in Secretary of Justice v. Lantion,35 we overturned our first ruling
and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.

An examination of decisions on stare decisis in major countries will show that courts are
agreed on the factors that should be considered before overturning prior rulings. These are
workability, reliance, intervening developments in the law and changes in fact. In addition,
courts put in the balance the following determinants: closeness of the voting, age of the prior
decision and its merits.36

The leading case in deciding whether a court should follow the stare decisis rule in constitutional
litigations isPlanned Parenthood v. Casey.37 It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in defying practical workability; (2)
consider whether the rule is subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation; (3) determine
whether related principles of law have so far developed as to have the old rule no more than a
remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be
seen differently, as to have robbed the old rule of significant application or justification.

Following these guidelines, I submit that the stare decisis rule should not bar the
reexamination of Santiago. On the factor of intolerability, the six (6) justices in Santiago held
R.A. 6735 to be insufficient as it provided no standard to guide COMELEC in issuing its
implementing rules. The Santiago ruling that R.A. 6735 is insufficient but without striking it down as
unconstitutional is an intolerable aberration, the only one of its kind in our planet. It improperly
assails the ability of legislators to write laws. It usurps the exclusive right of legislators to determine
how far laws implementing constitutional mandates should be crafted. It is elementary that courts
cannot dictate on Congress the style of writing good laws, anymore than Congress can tell courts
how to write literate decisions. The doctrine of separation of powers forbids this Court to invade the
exclusive lawmaking domain of Congress for courts can construe laws but cannot construct
them. The end result of the ruling of the six (6) justices that R.A. 6735 is insufficient is intolerable for
it rendered lifeless the sovereign right of the people to amend the Constitution via an initiative.

On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any
expectation from the people. On the contrary, the ruling smothered the hope of the people that they
could amend the Constitution by direct action. Moreover, reliance is a non-factor in the case at bar
for it is more appropriate to consider in decisions involving contracts where private rights are
adjudicated. The case at bar involves no private rights but the sovereignty of the people.

On the factor of changes in law and in facts, certain realities on ground cannot be blinked away.
The urgent need to adjust certain provisions of the 1987 Constitution to enable the country to
compete in the new millennium is given. The only point of contention is the mode to effect the
change - - - whether through constituent assembly, constitutional convention or people's initiative.
Petitioners claim that they have gathered over six (6) million registered voters who want to amend
the Constitution through people's initiative and that their signatures have been verified by registrars
of the COMELEC. The six (6) justices who ruled that R.A. 6735 is insufficient to implement the
direct right of the people to amend the Constitution through an initiative cannot waylay the
will of 6.3 million people who are the bearers of our sovereignty and from whom all
government authority emanates. New developments in our internal and external social, economic,
and political settings demand the reexamination of the Santiago case. The stare decisis rule is no
reason for this Court to allow the people to step into the future with a blindfold.

III

A reexamination of R.A. 6735 will show that it is sufficient to implement the people's
initiative.

Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to
implement Section 2, Article XVII of the 1987 Constitution allowing amendments to the Constitution
to be directly proposed by the people through initiative.

When laws are challenged as unconstitutional, courts are counseled to give life to the intent of
legislators. In enacting R.A. 6735, it is daylight luminous that Congress intended the said law to
implement the right of the people, thru initiative, to propose amendments to the Constitution by direct
action. This all-important intent is palpable from the following:

First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to
the Constitution:

The policy statement declares:

Sec. 2. Statement of 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)

It defines "initiative" as "the power of the people to propose amendments to the Constitution or
to propose and enact legislations through an election called for the purpose," and "plebiscite" as
"the electoral process by which an initiative on the Constitution is approved or rejected by the
people."

It provides the requirements for a petition for initiative to amend the Constitution, viz:

(1) That "(a) 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, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein;"38 and

(2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter."39

It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite."

Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it
as the instrument to implement people's initiative. No less than former Chief Justice Hilario G.
Davide, Jr., the ponentein Santiago, concedes:40

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 x x x x 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 and by the House of Representatives. This approved bill is now
R.A. No. 6735.

Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt
this intent. In his sponsorship remarks, the late Senator Raul Roco (then a Member of the House of
Representatives) emphasized the intent to make initiative as a mode whereby the people can
propose amendments to the Constitution. We quote his relevant remarks:41

SPONSORSHIP REMAKRS OF REP. ROCO

MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support
of House Bill No. 497, entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later
on may be called Initiative and Referendum Act of 1989.

As a background, we want to point out the constitutional basis of this particular bill. The grant
of plenary legislative power upon the Philippine Congress by the 1935, 1973 and 1987
Constitutions, Mr. Speaker, was based on the principle that any power deemed to be
legislative by usage and tradition is necessarily possessed by the Philippine Congress
unless the Organic Act has lodged it elsewhere. This was a citation from Vera vs.
Avelino (1946).

The presidential system introduced by the 1935 Constitution saw the application of the
principle of separation of powers. While under the parliamentary system of the 1973
Constitution the principle remained applicable, Amendment 6 or the 1981 amendments to the
1973 Constitution ensured presidential dominance over the Batasang Pambansa.

Our constitutional history saw the shifting and sharing of legislative power between the
legislature and the executive.

Transcending such changes in the exercise of legislative power is the declaration in the
Philippine Constitution that he Philippines is a Republican State where sovereignty resides in
the people and all government authority emanates from them.
In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through
the right of suffrage and indicating thereby their choice of lawmakers.

Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, there is a
practical recognition of what we refer to as people's sovereign power. This is the recognition
of a system of initiative and referendum.

Section 1, Article VI of the 1987 Constitution provides, and I quote:

The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum.

In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary
powers. There is a reserved legislative power given to the people expressly.

Section 32, the implementing provision of the same article of the Constitution provides, and I
quote:

The Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly propose
and enact laws or approve or reject any act or law or part thereof passed by the
Congress or local legislative body after the registration of a petition therefor signed
by at least ten per centum of the total number of registered voters, or which every
legislative district must be represented by at least three per centum of the registered
voters thereof.

In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power,
there are reserved powers given to the people. In Section 32, we are specifically told to pass
at the soonest possible time a bill on referendum and initiative. We are specifically mandated
to share the legislative powers of Congress with the people.

Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr.
Speaker. Under the provision on amending the Constitution, the section reads, and I quote:

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.

We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise
by the people of the right of initiative and referendum.

House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms
last December 14, 1988, Mr. Speaker, is the response to such a constitutional duty.

Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and
referendum under Philippine law has occurred.
Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the
system is provided for in our Local Government Code today. On initiative, for instance,
Section 99 of the said code vests in the barangay assembly the power to initiate legislative
processes, to hold plebiscites and to hear reports of the sangguniang barangay. There are
variations of initiative and referendum. The barangay assembly is composed of all persons
who have been actual residents of the barangay for at least six months, who are at least 15
years of age and citizens of the Philippines. The holding of barangay plebiscites and
referendum is also provided in Sections 100 and 101 of the same Code.

Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same
to the Secretary to be incorporated as part of my speech.

To continue, Mr. Speaker these same principles are extensively applied by the Local
Government Code as it is now mandated by the 1987 Constitution.

In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum
similar to what is now contained in House Bill No. 21505. As in the 1987 Constitutions and
House Bill No. 21505, the various constitutions of the states in the United States recognize
the right of registered voters to initiate the enactment of any statute or to reject any existing
law or parts thereof in a referendum. These states are Alaska, Alabama, Montana,
Massachusetts, Dakota, Oklahoma, Oregon, and practically all other states.

In certain American states, the kind of laws to which initiative and referendum applies is also
without ay limitation, except for emergency measures, which is likewise incorporated in
Section 7(b) of House Bill No. 21505.

The procedure provided by the House bill – from the filing of the petition, the requirement of
a certain percentage of supporters to present a proposition to submission to electors – is
substantially similar to those of many American laws. Mr. Speaker, those among us who may
have been in the United States, particularly in California, during election time or last
November during the election would have noticed different propositions posted in the city
walls. They were propositions submitted by the people for incorporation during the voting.
These were in the nature of initiative, Mr. Speaker.

Although an infant then in Philippine political structure, initiative and referendum is a tried
and tested system in other jurisdictions, and House Bill No. 21505 through the various
consolidated bills is patterned after American experience in a great respect.

What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues
slowly through the bill. The bill has basically only 12 sections. The constitutional
Commissioners, Mr. Speaker, saw this system of initiative and referendum as an instrument
which can be used should the legislature show itself indifferent to the needs of the people.
That is why, Mr. Speaker, it may be timely, since we seem to be amply criticized, as regards
our responsiveness, to pass this bill on referendum and initiative now. While indifference
would not be an appropriate term to use at this time, and surely it is not the case although we
are so criticized, one must note that it is a felt necessity of our times that laws need to be
proposed and adopted at the soonest possible time to spur economic development,
safeguard individual rights and liberties, and share governmental power with the people.

With the legislative powers of the President gone, we alone, together with the Senators when
they are minded to agree with us, are left with the burden of enacting the needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill.

First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term
connotes. It means that the people, on their own political judgment, submit fore the
consideration and voting of the general electorate a bill or a piece of legislation.

Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend
the Constitution. This can occur once every five years. Another is an initiative to amend
statutes that we may have approved. Had this bill been an existing law, Mr. Speaker, it is
most likely that an overwhelming majority of the barangays in the Philippines would have
approved by initiative the matter of direct voting.

The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional,
provincial, city, municipal or barangay laws or ordinances. It comes from the people and it
must be submitted directly to the electorate. The bill gives a definite procedure and allows
the COMELEC to define rules and regulations to give teeth to the power of initiative.

On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject
something that Congress has already approved.

For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or
three, we must first get the consent of the people affected through plebiscite or referendum.

Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be


petitioned by the people if, for instance, they do not life the bill on direct elections and it is
approved subsequently by the Senate. If this bill had already become a law, then the people
could petition that a referendum be conducted so that the acts of Congress can be
appropriately approved or rebuffed.

The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the
initiative comes from the people, from registered voters of the country, by presenting a
proposition so that the people can then submit a petition, which is a piece of paper that
contains the proposition. The proposition in the example I have been citing is whether there
should be direct elections during the barangay elections. So the petition must be filed in the
appropriate agency and the proposition must be clear stated. It can be tedious but that is
how an effort to have direct democracy operates.

Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have
referendum or initiative petitioned by the people. Under Section 4 of the committee report,
we are given certain limitations. For instance, to exercise the power of initiative or
referendum, at least 10 percent of the total number of registered voters, of which every
legislative district is represented by at least 3 percent of the registered voters thereof, shall
sign a petition. These numbers, Mr. Speaker, are not taken from the air. They are mandated
by the Constitution. There must be a requirement of 10 percent for ordinary laws and 3
percent representing all districts. The same requirement is mutatis mutandis or appropriately
modified and applied to the different sections. So if it is, for instance, a petition on initiative or
referendum for a barangay, there is a 10 percent or a certain number required of the voters
of the barangay. If it is for a district, there is also a certain number required of all towns of the
district that must seek the petition. If it is for a province then again a certain percentage of
the provincial electors is required. All these are based with reference to the constitutional
mandate.
The conduct of the initiative and referendum shall be supervised and shall be upon the call of
the Commission on Elections. However, within a period of 30 days from receipt of the
petition, the COMELEC shall determine the sufficiency of the petition, publish the same and
set the date of the referendum which shall not be earlier than 45 days but not later than 90
days from the determination by the commission of the sufficiency of the petition. Why is this
so, Mr. Speaker? The petition must first be determined by the commission as to its
sufficiency because our Constitution requires that no bill can be approved unless it contains
one subject matter. It is conceivable that in the fervor of an initiative or referendum, Mr.
Speaker, there may be more than two topics sought to be approved and that cannot be
allowed. In fact, that is one of the prohibitions under this referendum and initiative bill. When
a matter under initiative or referendum is approved by the required number of votes, Mr.
Speaker, it shall become effective 15 days following the completion of its publication in
the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and
recognize the legislative powers of the Filipino people.

Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be
insensitive to the call for initiative and referendum. We should have done it in 1987 but that is
past. Maybe we should have done it in 1988 but that too had already passed, but it is only
February 1989, Mr. Speaker, and we have enough time this year at least to respond to the
need of our people to participate directly in the work of legislation.

For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill
No. 21505 as incorporated in Committee Report No. 423 of the Committee on Suffrage and
Electoral Reforms.

In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the
footnotes since they contain many references to statutory history and foreign jurisdiction, be
reproduced as part of the Record for future purposes.

Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former
Representative Salvador Escudero III, viz:42

SPONSORSHIP REMARKS OF REP. ESCUDERO

MR. ESCUDERO. Thank you, Mr. Speaker.

Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed
the clamor of the people for a truly popular democracy. One recalls the impatience of those
who actively participated in the parliament of the streets, some of whom are now
distinguished Members of this Chamber. A substantial segment of the population feel
increasingly that under the system, the people have the form but not the reality or substance
of democracy because of the increasingly elitist approach of their chosen Representatives to
many questions vitally affecting their lives. There have been complaints, not altogether
unfounded, that many candidates easily forge their campaign promises to the people once
elected to office. The 1986 Constitutional Commission deemed it wise and proper to provide
for a means whereby the people can exercise the reserve power to legislate or propose
amendments to the Constitution directly in case their chose Representatives fail to live up to
their expectations. That reserve power known as initiative is explicitly recognized in three
articles and four sections of the 1987 Constitution, namely: Article VI Section 1; the same
article, Section 312; Article X, Section 3; and Article XVII, Section 2. May I request that he
explicit provisions of these three articles and four sections be made part of my sponsorship
speech, Mr. Speaker.
These constitutional provisions are, however, not self-executory. There is a need for an
implementing law that will give meaning and substance to the process of initiative and
referendum which are considered valuable adjuncts to representative democracy. It is
needless to state that this bill when enacted into law will probably open the door to strong
competition of the people, like pressure groups, vested interests, farmers' group, labor
groups, urban dwellers, the urban poor and the like, with Congress in the field of legislation.

Such probability, however, pales in significance when we consider that through this bill we
can hasten the politization of the Filipino which in turn will aid government in forming an
enlightened public opinion, and hopefully produce better and more responsive and
acceptable legislations.

Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and cause-
oriented groups an opportunity to articulate their ideas in a truly democratic forum, thus, the
competition which they will offer to Congress will hopefully be a healthy one. Anyway, in an
atmosphere of competition there are common interests dear to all Filipinos, and the pursuit of
each side's competitive goals can still take place in an atmosphere of reason and
moderation.

Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines
Sur and this Representation filed our respective versions of the bill in 1987, we were hoping
that the bill would be approved early enough so that our people could immediately use the
agrarian reform bill as an initial subject matter or as a take-off point.

However, in view of the very heavy agenda of the Committee on Local Government, it took
sometime before the committee could act on these. But as they say in Tagalog, huli man
daw at magaling ay naihahabol din. The passage of this bill therefore, my dear colleagues,
could be one of our finest hours when we can set aside our personal and political
consideration for the greater good of our people. I therefore respectfully urge and plead that
this bill be immediately approved.

Thank you, Mr. Speaker.

We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret
the law as legislated and when possible, to honor the clear meaning of statutes as revealed by its
language, purpose and history."43

The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x
R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned" for the following reasons: (1) Section 2 of
the Act does not suggest an initiative on amendments to the Constitution; (2) the Act does not
provide for the contents of the petition for initiative on the Constitution; and (3) 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.

To say the least, these alleged omissions are too weak a reason to throttle the right of the
sovereign people to amend the Constitution through initiative. R.A. 6735 clearly expressed
the legislative policy for the people to propose amendments to the Constitution by direct action.
The fact that the legislature may have omitted certain details in implementing the people's initiative
in R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted
were mere details and not fundamental policies which Congress alone can and has
determined. Implementing details of a law can be delegated to the COMELEC and can be the
subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the COMELEC
has the power to enforce and administer all laws and regulations relative to the conduct of initiatives.
Its rule-making power has long been recognized by this Court. In ruling R.A. 6735 insufficient but
without striking it down as unconstitutional, the six (6) justices failed to give due recognition to the
indefeasible right of the sovereign people to amend the Constitution.

IV

The proposed constitutional changes, albeit substantial, are mere amendments and
can be undertaken through people's initiative.

Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only
allow the use of people's initiative to amend and not to revise the Constitution. They theorize that the
changes proposed by petitioners are substantial and thus constitute a revision which cannot be
done through people's initiative.

In support of the thesis that the Constitution bars the people from proposing substantial
amendmentsamounting to revision, the oppositors-intervenors cite the following deliberations during
the Constitutional Commission, viz:44

MR. SUAREZ: x x x x 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.

xxxxxxxxxxxx

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?

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.

Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45

MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal
for amendment only, not for revision, only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1
refers to "amendment." Does it 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."

Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified
this point46 -

MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to
"Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this
Constitution."

MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.

MR. OPLE. How is that again?

MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but
merely by amendments.

MR. BENGZON. Only by amendments.

MR. AZCUNA. I remember that was taken on the floor.

MR. RODRIGO. Yes, just amendments.

The oppositors-intervenors then point out that by their proposals, petitioners will "change the very
system of government from presidential to parliamentary, and the form of the legislature from
bicameral to unicameral," among others. They allegedly seek other major revisions like the inclusion
of a minimum number of inhabitants per district, a change in the period for a term of a Member of
Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who
shall exercise the executive power, and so on and so forth.47 In sum, oppositors-intervenors submit
that "the proposed changes to the Constitution effect major changes in the political structure and
system, the fundamental powers and duties of the branches of the government, the political rights of
the people, and the modes by which political rights may be exercised."48 They conclude that they are
substantial amendments which cannot be done through people's initiative. In other words, they posit
the thesis that only simple but not substantial amendments can be done through people's
initiative.

With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to
any accurate quantitative or qualitative test. Obviously, relying on the quantitative test, oppositors-
intervenors assert that the amendments will result in some one hundred (100) changes in the
Constitution. Using the same test, however, it is also arguable that petitioners seek to change
basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI
(Legislative Department) and Article VII (Executive Department), together with the complementary
provisions for a smooth transition from a presidential bicameral system to a parliamentary
unicameral structure. The big bulk of the 1987 Constitution will not be affected including Articles
I (National Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV
(Citizenship), V (Suffrage), VIII (Judicial Department), IX (Constitutional Commissions), X (Local
Government), XI (Accountability of Public Officers), XII (National Economy and Patrimony), XIII
(Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and
Sports), XV (The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In
fine, we stand on unsafe ground if we use simple arithmetic to determine whether the
proposed changes are "simple" or "substantial."

Nor can this Court be surefooted if it applies the qualitative test to determine whether the said
changes are "simple" or "substantial" as to amount to a revision of the Constitution. The well-
regarded political scientist,Garner, says that a good constitution should contain at least three (3)
sets of provisions: the constitution of liberty which sets forth the fundamental rights of the people
and imposes certain limitations on the powers of the government as a means of securing the
enjoyment of these rights; the constitution of government which deals with the framework of
government and its powers, laying down certain rules for its administration and defining the
electorate; and, the constitution of sovereignty which prescribes the mode or procedure for
amending or revising the constitution.49 It is plain that the proposed changes will basically affect
only the constitution of government. The constitutions of liberty and sovereignty remain
unaffected. Indeed, the proposed changes will not change the fundamental nature of our state
as "x x x a democratic and republican state."50 It is self-evident that a unicameral-parliamentary
form of government will not make our State any less democratic or any less republican in character.
Hence, neither will the use of the qualitative test resolve the issue of whether the proposed
changes are "simple" or "substantial."

For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to
determine whether an "amendment" is "simple" or "substantial." Nor did they provide that
"substantial" amendments are beyond the power of the people to propose to change the
Constitution. Instead, our Constitutions carried the traditional distinction between
"amendment" and "revision," i.e., "amendment" means change, including complex changes while
"revision" means complete change, including the adoption of an entirely new covenant. The legal
dictionaries express this traditional difference between "amendment" and "revision." Black's Law
Dictionary defines "amendment" as "[a] formal revision or addition proposed or made to a statute,
constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion,
or correction."51 Black's also refers to "amendment" as "the process of making such a
revision."52 Revision, on the other hand, is defined as "[a] reexamination or careful review for
correction or improvement."53 In parliamentary law, it is described as "[a] general and thorough
rewriting of a governing document, in which the entire document is open to
amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" – as "[a] correction or
revision of a writing to correct errors or better to state its intended purpose"55 and "amendment of
constitution" as "[a] process of proposing, passing, and ratifying amendments to the x x x
constitution."56 In contrast, "revision," when applied to a statute (or constitution), "contemplates the
re-examination of the same subject matter contained in the statute (or constitution), and the
substitution of a new, and what is believed to be, a still more perfect rule."57

One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual
debt, Dean Vicente G. Sinco, of the University of the Philippines College of Law, (later President of
the U.P. and delegate to the Constitutional Convention of 1971) similarly spelled out the difference
between "amendment" and "revision." He opined: "the revision of a constitution, in its strict sense,
refers to a consideration of the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or to be altered in a
constitution."58

Our people were guided by this traditional distinction when they effected changes in our 1935
and 1973 Constitutions. In 1940, the changes to the 1935 Constitution which included the
conversion from a unicameral system to a bicameral structure, the shortening of the tenure of
the President and Vice-President from a six-year term without reelection to a four-year term with one
reelection, and the establishment of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not a revision.

The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a
revisionsince the 1973 Constitution was "a completely new fundamental charter embodying new
political, social and economic concepts."59 Among those adopted under the 1973 Constitution were:
the parliamentary system in place of the presidential system, with the leadership in legislation and
administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered
lawmaking body instead of the two-chambered, which would be more suitable to a parliamentary
system of government; the enfranchisement of the youth beginning eighteen (18) years of age
instead of twenty-one (21), and the abolition of literacy, property, and other substantial requirements
to widen the basis for the electorate and expand democracy; the strengthening of the judiciary, the
civil service system, and the Commission on Elections; the complete nationalization of the ownership
and management of mass media; the giving of control to Philippine citizens of all
telecommunications; the prohibition against alien individuals to own educational institutions, and the
strengthening of the government as a whole to improve the conditions of the masses.60

The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and
1984. Thetwo significant innovations introduced in 1976 were (1) the creation of
an interim Batasang Pambansa, in place of the interim National Assembly, and (2) Amendment No.
6 which conferred on the President the power to issue decrees, orders, or letters of instruction,
whenever the Batasang Pambansa fails to act adequately on any matter for any reason that in his
judgment requires immediate action, or there is grave emergency or threat or imminence thereof,
with such decrees, or letters of instruction to form part of the law of the land. In 1980, the retirement
age of seventy (70) for justices and judges was restored. In 1981, the presidential system with
parliamentary features was installed. The transfer of private land for use as residence to natural-born
citizens who had lost their citizenship was also allowed. Then, in 1984, the membership of the
Batasang Pambansa was reapportioned by provinces, cities, or districts in Metro Manila instead of
by regions; the Office of the Vice-President was created while the executive committee was
abolished; and, urban land reform and social housing programs were strengthened.61 These
substantial changes were simply considered as mere amendments.

In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution.
She governed under Proclamation No. 3, known as the Freedom Constitution.

In February 1987, the new constitution was ratified by the people in a plebiscite and superseded
the Provisional or Freedom Constitution. Retired Justice Isagani Cruz underscored the outstanding
features of the 1987 Constitution which consists of eighteen articles and is excessively long
compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of the original
provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the bicameral Congress of the
Philippines and the strictly presidential system. The independence of the judiciary has been
strengthened, with new provisions for appointment thereto and an increase in its authority, which
now covers even political questions formerly beyond its jurisdiction. While many provisions of the
1973 Constitution were retained, like those on the Constitutional Commissions and local
governments, still the new 1987 Constitution was deemed as a revision of the 1973 Constitution.

It is now contended that this traditional distinction between amendment and revision was
abrogated by the 1987 Constitution. It is urged that Section 1 of Article XVII gives the power to
amend or revise to Congress acting as a constituent assembly, and to a Constitutional Convention
duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the people's
right to change the Constitution via initiative through simple amendments. In other words,
the people cannot propose substantial amendments amounting to revision.

With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above
proposition rely on the opinions of some Commissioners expressed in the course of the debate on
how to frame the amendment/revision provisions of the 1987 Constitution. It is familiar learning,
however, that opinions in a constitutional convention, especially if inconclusive of an issue, are
of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the
people) since the constitution derives its force as a fundamental law, not from the action of the
convention but from the powers (of the people) who have ratified and adopted it.62 "Debates in the
constitutional convention 'are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law.'"63 Indeed, a careful perusal of the debates of
the Constitutional Commissioners can likewise lead to the conclusion that there was no
abandonment of the traditional distinction between "amendment" and "revision." For during
the debates, some of the commissioners referred to the concurring opinion of former Justice Felix Q.
Antonio in Javellana v. The Executive Secretary,64that stressed the traditional distinction
between amendment and revision, thus:65

MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment."
However, the Committee finally agreed to use the terms – "amendment" or "revision" when
our attention was called by the honorable Vice-President to the substantial difference in the
connotation and significance between the said terms. As a result of our research, we came
up with the observations made in the famous – or notorious – Javellana doctrine, particularly
the decision rendered by Honorable Justice Makasiar,66 wherein he made the following
distinction between "amendment" and "revision" of an existing Constitution: "Revision" may
involve a rewriting of the whole Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions only. The intention of an act to amend
is not the change of the entire Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely
new fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to the new
Constitution.

To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy –
"When a house is completely demolished and another is erected on the same location, do you have
a changed, repaired and altered house, or do you have a new house? Some of the material
contained in the old house may be used again, some of the rooms may be constructed the same,
but this does not alter the fact that you have altogether another or a new house."67

Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they
had in mind the "rewriting of the whole Constitution," or the "total overhaul of the
Constitution." Anything less is an "amendment" or just "a change of specific provisions only," the
intention being "not the change of the entire Constitution, but only the improvement of specific parts
or the addition of provisions deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times." Under
this view, "substantial" amendments are still "amendments" and thus can be proposed by the
people via an initiative.

As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on


the difference between "simple" and "substantial" amendments or whether "substantial"
amendments amounting to revision are covered by people's initiative, it behooves us to follow
the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to the intention of
the people who adopted it. The illustrious Cooley explains its rationale well, viz:68

x x x the constitution does not derive its force from the convention which framed, but from the
people who ratified it, the intent to be arrived at is that of the people, and it is not to be
supposed that they have looked for any dark or abstruse meaning in the words employed,
but rather that they have accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that that was the sense designed to
be conveyed. These proceedings therefore are less conclusive of the proper construction of
the instrument than are legislative proceedings of the proper construction of a statute; since
in the latter case it is the intent of the legislature we seek, while in the former we are
endeavoring to arrive at the intent of the people through the discussion and deliberations of
their representatives. The history of the calling of the convention, the causes which led to it,
and the discussions and issues before the people at the time of the election of the delegates,
will sometimes be quite as instructive and satisfactory as anything to be gathered form the
proceedings of the convention.

Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and
on broad general lines, to accomplish the object of its establishment and carry out the great
principles of government – not to defeat them.69 One of these great principles is the sovereignty
of the people.

Let us now determine the intent of the people when they adopted initiative as a mode to amend the
1987 Constitution. We start with the Declaration of Principles and State Policies which Sinco
describes as "the basic political creed of the nation"70 as it "lays down the policies that government is
bound to observe."71 Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973
Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from them." In a republican state, the power of
the sovereign people is exercised and delegated to their representatives. Thus in Metropolitan
Transportation Service v. Paredes, this Court held that "a republican state, like the Philippines x x x
(is) derived from the will of the people themselves in freely creating a government 'of the people, by
the people, and for the people' – a representative government through which they have agreed to
exercise the powers and discharge the duties of their sovereignty for the common good and general
welfare."72

In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a
convention, the power to amend or revise our fundamental law. History informs us how this
delegated power to amend or revise the Constitution was abused particularly during the
Marcos regime. The Constitution was changed several times to satisfy the power requirements of
the regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then
President Ferdinand E. Marcos. A conspiracy of circumstances from above and below, however,
brought down the Marcos regime through an extra constitutional revolution, albeit a peaceful one
by the people. A main reason for the people's revolution was the failure of the representatives
of the people to effectuate timely changes in the Constitution either by acting as a
constituent assembly or by calling a constitutional convention. When the representatives of the
peopledefaulted in using this last peaceful process of constitutional change, the sovereign
people themselves took matters in their own hands. They revolted and replaced the 1973
Constitution with the 1987 Constitution.

It is significant to note that the people modified the ideology of the 1987 Constitution as it
stressed the power of the people to act directly in their capacity as sovereign people.
Correspondingly, the power of the legislators to act as representatives of the people in the
matter of amending or revising the Constitution was diminished for the spring cannot rise
above its source. To reflect this significant shift, Section 1, Article II of the 1987 Constitution
was reworded. It now reads: "the Philippines is a democratic and republican state. Sovereignty
resides in the people and all government authority emanates from them." The commissioners of the
1986 Constitutional Commission explained the addition of the word "democratic," in our first
Declaration of Principles, viz:

MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now
adopting which are covering consultations with the people. For example, we have provisions on
recall, initiative, the right of the people even to participate in lawmaking and other instances that
recognize the validity of interference by the people through people's organizations x x x x73

MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and,
therefore, the first sentence states: "The Philippines is a republican and democratic state x x
xx

May I know from the committee the reason for adding the word "democratic" to "republican"?
The constitutional framers of the 1935 and 1973 Constitutions were content with
"republican." Was this done merely for the sake of emphasis?

MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize


people power and the many provisions in the Constitution that we have approved
related to recall, people's organizations, initiative and the like, which recognize the
participation of the people in policy-making in certain circumstances x x x x

MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a
need x x x x

MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood


as participatory democracy. 74 (emphasis supplied)

The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the
same import:75

MR. SARMIENTO. When we speak of republican democratic state, are we referring to


representative democracy?

MR. AZCUNA. That is right.

MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935
Constitutions which used the words "republican state" because "republican state" would refer
to a democratic state where people choose their representatives?

MR. AZCUNA. We wanted to emphasize the participation of the people in government.


MR. SARMIENTO. But even in the concept "republican state," we are stressing the
participation of the people x x x x So the word "republican" will suffice to cover popular
representation.

MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of
the introduction of the aspects of direct democracy such as initiative, referendum or recall,
it was necessary to emphasize the democratic portion of republicanism, of representative
democracy as well. So, we want to add the word "democratic" to emphasize that in this
new Constitution there are instances where the people would act directly, and not
through their representatives. (emphasis supplied)

Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall
were enthroned as polestars in the 1987 Constitution. Thus, Commissioner Blas F. Ople who
introduced the provision on people's initiative said:76

MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an
innovative mode of proposing amendments to the Constitution, vesting in the people and
their organizations the right to formulate and propose their own amendments and
revisions of the Constitution in a manner that will be binding upon the government. It is not
that I believe this kind of direct action by the people for amending a constitution will be
needed frequently in the future, but it is good to know that the ultimate reserves of
sovereign power still rest upon the people and that in the exercise of that power, they
can propose amendments or revision to the Constitution. (emphasis supplied)

Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a
peaceful way for the people to change their Constitution, by citing our experiences under the Marcos
government, viz:77

MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are
providing a channel for the expression of the sovereign will of the people through this
initiative system.

MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of
the will of the people, particularly in the amendment or revision of the Constitution?

MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the
20 years under the Marcos administration. So, if the National Assembly, in a manner
of speaking, is operating under the thumb of the Prime Minister or the President as the case
may be, and the required number of votes could not be obtained, we would have to provide
for a safety valve in order that the people could ventilate in a very peaceful way their desire
for amendment to the Constitution.

It is very possible that although the people may be pressuring the National Assembly
to constitute itself as a constituent assembly or to call a constitutional convention, the
members thereof would not heed the people's desire and clamor. So this is a third
avenue that we are providing for the implementation of what is now popularly known as
people's power. (emphasis supplied)

Commissioner Regalado E. Maambong opined that the people's initiative could avert a
revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a
revolution by providing a safety valve in bringing about changes in the Constitution through
pacific means. This, in effect, operationalizes what political law authors call the "prescription
of sovereignty." (emphasis supplied)

The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the
sovereign people to propose amendments to the Constitution by direct action or through initiative. To
that extent, the delegated power of Congress to amend or revise the Constitution has to be
adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and
now provides: "The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives,except to the extent reserved to the people
by the provision on initiative and referendum."

Prescinding from these baseline premises, the argument that the people through initiative
cannot propose substantial amendments to change the Constitution turns sovereignty on its
head. At the very least, thesubmission constricts the democratic space for the exercise of the
direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be
trusted with the power to propose "simple" but not "substantial" amendments to the Constitution.
According to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it
was originally developed in law.79 Legal sovereignty, he explained, is "the possession of unlimited
power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party
endowed with legally superior powers and privileges. It is not subject to law 'for it is the author
and source of law.' Legal sovereignty is thus the equivalent of legal omnipotence."80

To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the people's will over
the state which they themselves have created. The state is created by and subject to the will of the
people, who are the source of all political power. Rightly, we have ruled that "the sovereignty of our
people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and bounds
are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to govern."81

James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United
States in the 1780s, laid down the first principles of popular sovereignty during the Pennsylvania
ratifying convention of the 1787 Constitution of the United States:82

There necessarily exists, in every government, a power from which there is no appeal, and
which, for that reason, may be termed supreme, absolute, and uncontrollable.

x x x x Perhaps some politician, who has not considered with sufficient accuracy our political
systems, would answer that, in our governments, the supreme power was vested in the
constitutions x x x x This opinion approaches a step nearer to the truth, but does not reach
it. The truth is, that in our governments, the supreme, absolute, and uncontrollable
power remains in the people. As our constitutions are superior to our legislatures, so the
people are superior to our constitutions. Indeed the superiority, in this last instance, is much
greater; for the people possess over our constitution, control in act, as well as right.
(emphasis supplied)

I wish to reiterate that in a democratic and republican state, only the people is sovereign - - -
not the elected President, not the elected Congress, not this unelected Court. Indeed, the
sovereignty of the people which is indivisible cannot be reposed in any organ of government. Only
its exercise may be delegated to any of them. In our case, the people delegated to Congress
the exercise of the sovereign power to amend or revise the Constitution. If Congress, as
delegate, can exercise this power to amend or revise the Constitution, can it be argued that the
sovereign people who delegated the power has no power to substantially amend the Constitution by
direct action? If the sovereign people do not have this power to make substantial amendments to the
Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to
substantially amend the Constitution when by their sovereignty, all power emanates from them? It
will take somemumbo jumbo to argue that the whole is lesser than its part. Let Sinco clinch the
point:83

But although possession may not be delegated, the exercise of sovereignty often is. It is
delegated to the organs and agents of the state which constitute its government, for it is only
through this instrumentality that the state ordinarily functions. However ample and
complete this delegation may be, it is nevertheless subject to withdrawal at any time
by the state. On this point Willoughby says:

Thus, States may concede to colonies almost complete autonomy of government


and reserve to themselves a right to control of so slight and so negative a character
as to make its exercise a rare and improbable occurrence; yet so long as such right
of control is recognized to exist, and the autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of the mother countries the sovereignty
of those mother countries over them is complete and they are to be considered as
possessing only administrative autonomy and not political independence.

At the very least, the power to propose substantial amendments to the Constitution is shared
with the people. We should accord the most benign treatment to the sovereign power of the
people to propose substantial amendments to the Constitution especially when the proposed
amendments will adversely affect the interest of some members of Congress. A contrary
approach will suborn the public weal to private interest and worse, will enable Congress (the
delegate) to frustrate the power of the people to determine their destiny (the principal).

All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people
to exercise initiative and referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly construed to maintain maximum power
in the people.85 We followed this orientation in Subic Bay Metropolitan Authority v. Commission on
Elections.86 There is not an iota of reason to depart from it.

The issues at bar are not political questions.

Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the
Constitution and their will, as expressed by the fact that over six million registered voters indicated
their support of the Petition for Initiative, is a purely political question which is beyond even the
very long arm of this Honorable Court's power of judicial review. Whether or not the 1987
Constitution should be amended is a matter which the people and the people alone must resolve in
their sovereign capacity."87 They argue that "[t]he power to propose amendments to the Constitution
is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of initiative is a sovereign act and falls
squarely within the ambit of a 'political question.'"88

The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission
on Elections, viz:89
Political questions are neatly associated with the wisdom, not the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act, that
matter is definitely justiciable or non-political. What is in the heels of the Court is not the
wisdom of the act of the incumbent President in proposing amendments to the Constitution,
but his constitutional authority to perform such act or to assume the power of a constituent
assembly. Whether the amending process confers on the President that power to propose
amendments is therefore a downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the Constitution provides how
it may be amended, the judiciary as the interpreter of that Constitution, can declare whether
the procedure followed or the authority assumed was valid or not.

We cannot accept the view of the Solicitor General, in pursuing his theory of non-
justiciability, that the question of the President's authority to propose amendments and the
regularity of the procedure adopted for submission of the proposals to the people ultimately
lie in the judgment of the latter. A clear Descartes fallacy of vicious cycle. Is it not that the
people themselves, by their sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in 1973? Whether, therefore,
that constitutional provision has been followed or not is indisputably a proper subject of
inquiry, not by the people themselves – of course – who exercise no power of judicial review,
but by the Supreme Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms for amendments
have been observed or not. And, this inquiry must be done a priori not a posteriori, i.e.,
before the submission to and ratification by the people.

In the instant case, the Constitution sets in black and white the requirements for the exercise of the
people's initiative to amend the Constitution. The amendments must be proposed by the people
"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."90Compliance with these
requirements is clearly a justiciable and not a political question. Be that as it may, how the issue will
be resolved by the people is addressed to them and to them alone.

VI

Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article
XVII of the Constitution and R.A. 6735 involves contentious issues of fact which should first
be resolved by the COMELEC.

Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the required number of
signatures under Section 2, Article XVII of the Constitution. Said provision requires that the petition
for initiative be supported by at least twelve per cent (12%) of the total number of registered voters,
of which every legislative district must be represented by at least three per cent (3%) of the
registered voters therein. Oppositors-intervenors contend thatno proper verification of
signatures was done in several legislative districts. They assert that mere verification of the names
listed on the signature sheets without verifying the signatures reduces the signatures submitted for
their respective legislative districts to mere scribbles on a piece of paper.

Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006
issued by Atty. Marlon S. Casquejo, Election Officer IV, Third District and OIC, First and Second
District, Davao City, stating that his office has not verified the signatures submitted by the
proponents of the people's initiative. The certification reads:
This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT
VERIFIED the signatures of registered voters as per documents submitted in this office by
the proponents of the People's Initiative. Consequently, NO ELECTION DOCUMENTS
AND/OR ORDER ISSUED BY HIGHER SUPERIORSused as basis for such verification of
signatures.91

Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty.
Casquejo and Reynne Joy B. Bullecer, Acting Election Officer IV, First District, Davao City, later
issued certifications stating that the Office of the City Election Officer has examined the list of
individuals appearing in the signature sheets,92 the certifications reveal that the office had verified
only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not
only the names of the signatories should be verified, but also their signatures to ensure the identities
of the persons affixing their signatures on the signature sheets.

Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures
of at least three per cent (3%) of the total number of registered voters in the First Legislative District
of South Cotabato. For the First District of South Cotabato, petitioners submitted 3,182 signatures
for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and 10,301
signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district.
Antonino, however, submitted to this Court a copy of the certification by Glory D. Rubio, Election
Officer III, Polomolok, dated May 8, 2006, showing that the signatures from Polomolok were not
verified because the Book of Voters for the whole municipality was in the custody of the Clerk of
Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato.93 Excluding the signatures
from Polomolok from the total number of signatures from the First District of South Cotabato would
yield only a total of 8,676 signatures which falls short of the three per cent (3%) requirement for the
district.

Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this
Court a certification issued by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City,
stating that the list of names appearing on the signature sheets corresponds to the names of
registered voters in the city, thereby implying that they have not actually verified the signatures.94

The argument against the sufficiency of the signatures is further bolstered by Alternative Law
Groups, Inc., which submitted copies of similarly worded certifications from the election officers from
Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law Groups, Inc., further assails the
regularity of the verification process as it alleged that verification in some areas were conducted by
Barangay officials and not by COMELEC election officers. It filed with this Court copies of
certifications from Sulu and Sultan Kudarat showing that the verification was conducted by local
officials instead of COMELEC personnel.97

Petitioners, on the other hand, maintain that the verification conducted by the election officers
sufficiently complied with the requirements of the Constitution and the law on initiative.

Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in
Polomolok, South Cotabato, petitioner Aumentado claimed that the same election officers cited by
the oppositors-intervenors also issued certifications showing that they have verified the signatures
submitted by the proponents of the people's initiative. He presented copies of the certifications
issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City
stating that he verified the signatures of the proponents of the people's initiative. His certification for
the Second District states:
This is to CERTIFY that this Office has examined the list of individuals as appearing in the
Signature Sheets of the Registered Voters of District II, Davao City, submitted on April 7,
2006 by MR. NONATO BOLOS, Punong Barangay, Centro, Davao City for verification which
consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) signatures.

Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO
(30,662) individuals, only TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT
(22,668) individuals were found to be REGISTERED VOTERS, in the Computerized List of
Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98

It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification
process conducted in Davao City. It reads:

Regarding the verification of the signatures of registered voters, this Office has previously
issued two (2) separate certifications for the 2nd and 3rd Districts of Davao City on April 20,
2006 and April 26, 2006, respectively, specifically relating to the voters who supported the
people's initiative. It was stated therein that the names submitted, comprising 22,668
individual voters in the 2nd District and 18,469 individual voters in the 3rd District, were found
[to] be registered voters of the respective districts mentioned as verified by this Office based
on the Computerized List of Voters.

It must be clarified that the August 23, 2006 Certification was issued in error and by mistake
for the reason that the signature verification has not been fully completed as of that date.

I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in
the signature sheets and has compared these with the signatures appearing in the book of
voters and computerized list of voters x x x 99

Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by
Polomolok Election Officer Glory D. Rubio to support their claim that said officer had conducted a
verification of signatures in said area. The certification states:

This is to certify further, that the total 68,359 registered voters of this municipality, as of the
May 10, 2004 elections, 10,804 names with signatures were submitted for verification and
out of which 10,301 were found to be legitimate voters as per official list of registered voters,
which is equivalent to 15.07% of the total number of registered voters of this Municipality.100

In addition to the lack of proper verification of the signatures in numerous legislative districts,
allegations of fraud and irregularities in the collection of signatures in Makati City were cited by
Senator Pimentel, among others, to wit:

(1) No notice was given to the public, for the benefit of those who may be concerned, by the
Makati COMELEC Office that signature sheets have already been submitted to it for
"verification." The camp of Mayor Binay was able to witness the "verification process" only
because of their pro-active stance;

(2) In District 1, the proponents of charter change submitted 43,405 signatures for
verification. 36,219 alleged voters' signatures (83% of the number of signatures submitted)
were rejected outright. 7,186 signatures allegedly "passed" COMELEC's initial scrutiny.
However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said
7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures
marked with the word "OK" and 3,443 signatures marked with a check, giving only 6,236
"apparently verified signatures." Before the COMELEC officer issued the Certification, Atty.
Binay already submitted to the said office not less than 55 letters of "signature withdrawal,"
but no action was ever taken thereon;

(3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters'
signatures (80% of those submitted) were rejected outright. Of the 5,890 signatures which
allegedly passed the COMELEC's initial scrutiny, some more will surely fail upon closer
examination;

(4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not
know how to treat the objections and other observations coming from the camp of Mayor
Binay. The oppositors too did not know where to go for their remedy when the COMELEC
personnel merely "listened" to their objections and other observations. As mentioned earlier,
the COMELEC personnel did not even know what to do with the many "letters of signature
withdrawal" submitted to it;

(5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the
Sigaw ng Bayan Signature Sheets. There is even a 15-year old alleged signatory;

(6) There are Signature Sheets obviously signed by one person;

(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature
Sheets.101

Also, there are allegations that many of the signatories did not understand what they have signed as
they were merely misled into signing the signature sheets. Opposed to these allegations are rulings
that a person who affixes his signature on a document raises the presumption that the person so
signing has knowledge of what the document contains. Courts have recognized that there is great
value in the stability of records, so to speak, that no one should commit herself or himself to
something in writing unless she or he is fully aware and cognizant of the effect it may have upon her
on him.102 In the same vein, we have held that a person is presumed to have knowledge of the
contents of a document he has signed.103 But as this Court is not a trier of facts, it cannot resolve the
issue.

In sum, the issue of whether the petitioners have complied with the constitutional requirement that
the petition for initiative be signed by at least twelve per cent (12%) of the total number of registered
voters, of which every legislative district must be represented by at least three per cent (3%) of the
registered voters therein, involves contentious facts. Its resolution will require presentation of
evidence and their calibration by the COMELEC according to its rules. During the oral
argument on this case, the COMELEC, through Director Alioden Dalaig of its Law
Department, admitted that it has not examined the documents submitted by the petitioners in
support of the petition for initiative, as well as the documents filed by the oppositors to buttress their
claim that the required number of signatures has not been met. The exchanges during the oral
argument likewise clearly show the need for further clarification and presentation of evidence to
prove certain material facts.104

The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling
in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of
the form and substance of the petition. I respectfully submit that this issue should be properly
litigated before the COMELEC where both parties will be given full opportunity to prove their
allegations.
For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the
requirements of R.A. 6735 on initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance, as it is the body that is mandated by the Constitution
to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall.105

VII

COMELEC gravely abused its discretion when it denied due course to the Lambino
and Aumentado petition.

In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's
ruling inSantiago permanently enjoining it from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.

Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave abuse of
discretion amounting to lack of jurisdiction. The Santiago case did not establish the firm
doctrine that R.A. 6735 is not a sufficient law to implement the constitutional provision allowing
people's initiative to amend the Constitution. To recapitulate, the records show that in the original
decision, eight (8) justices106 voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted
that said law was sufficient; and one (1) justice108 abstained from voting on the issue holding that
unless and until a proper initiatory pleading is filed, the said issue is not ripe for adjudication.109

Within the reglementary period, the respondents filed their motion for reconsideration. On June 10,
1997, the Court denied the motion. Only thirteen (13) justices resolved the motion for Justice Torres
inhibited himself.110 Of the original majority of eight (8) justices, only six (6) reiterated their
ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of the majority
of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without
any equivocation that R.A. 6735 was a sufficient law, thus:

It is one thing to utter a happy phrase from a protected cluster; another to think under fire –
to think for action upon which great interests depend." So said Justice Oliver Wendell
Holmes, and so I am guided as I reconsider my concurrence to the holding of the majority
that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the
Constitution and to have failed to provide sufficient standard for subordinate legislation" and
now to interpose my dissent thereto.

xxx

WHEREFORE, I vote to dismiss the Delfin petition.

I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for
the exercise by the people of their right to amend the Constitution through initiative
proceedings and to uphold the validity of COMELEC Resolution No. 2300 insofar as it does
not sanction the filing of the initiatory petition for initiative proceedings to amend the
Constitution without the required names and/or signatures of at least 12% of all the
registered voters, of which every legislative district must be represented by at least 3% of the
registered voters therein. (emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final
vote on whether R.A. 6735 is a sufficient law was 6-6 with one (1) justice inhibiting himself and
another justice refusing to rule on the ground that the issue was not ripe for adjudication.

It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law
failed to establish a doctrine that could serve as a precedent. Under any alchemy of law, a
deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential
value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz:

As it stands, of the thirteen justices who took part in the deliberations on the issue of whether
the motion for reconsideration of the March 19, 1997 decision should be granted or not, only
the following justices sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and
Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno, Mendoza,
Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice
Vitug "maintained his opinion that the matter was not ripe for judicial adjudication." In other
words, only five, out of the other twelve justices, joined Mr. Justice Davide's June 10, 1997
ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so called
"completeness and sufficiency standards" tests. The "concurrence of a majority of the
members who actually took part in the deliberations" which Article VII, Section 4(2) of the
Constitution requires to declare a law unconstitutional was, beyond dispute, not complied
with. And even assuming, for the sake of argument, that the constitutional requirement on
the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the
same is inconclusive as it was still open for review by way of a motion for reconsideration. It
was only on June 10, 1997 that the constitutionality of R.A. No. 6735 was settled with finality,
sans the constitutionally required "majority." The Court's declaration, therefore, is manifestly
grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the
Court's decision in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor
waste this opportunity accorded by this new petition (G.R. No. 129754) to relieve the Court's
pronouncement from constitutional infirmity.

The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in
the United States, an affirmance in the Federal Supreme Court upon equal division of opinion is not
an authority for the determination of other cases, either in that Court or in the inferior federal courts.
In Neil v. Biggers,111 which was a habeas corpus state proceeding by a state prisoner, the U.S.
Supreme Court held that its equally divided affirmance of petitioner's state court conviction was
not an "actual adjudication" barring subsequent consideration by the district court on habeas corpus.
In discussing the non-binding effect of an equal division ruling, the Court reviewed the history of
cases explicating the disposition "affirmed by an equally divided Court:"

In this light, we review our cases explicating the disposition "affirmed by an equally divided
Court." On what was apparently the first occasion of an equal division, The Antelope, 10
Wheat, 66, 6 L. Ed. 268 (1825), the Court simply affirmed on the point of division without
much discussion. Id., at 126-127. Faced with a similar division during the next Term, the
Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have
been argued, cannot be settled; but the judgment is affirmed, the court being divided in
opinion upon it." Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419
(1826). As was later elaborated in such cases, it is the appellant or petitioner who asks the
Court to overturn a lower court's decree. "If the judges are divided, the reversal cannot be
had, for no order can be made. The judgment of the court below, therefore, stands in full
force. It is indeed, the settled practice in such case to enter a judgment of affirmance; but this
is only the most convenient mode of expressing the fact that the cause is finally disposed of
in conformity with the action of the court below, and that that court can proceed to enforce its
judgment. The legal effect would be the same if the appeal, or writ of error, were
dismissed."Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an
affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v.
Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"

This doctrine established in Neil has not been overturned and has been cited with approval in a
number of subsequent cases,112 and has been applied in various state jurisdictions.

In the case of In the Matter of the Adoption of Erin G., a Minor Child,113 wherein a putative father
sought to set aside a decree granting petition for adoption of an Indian child on grounds of
noncompliance with the requirements of Indian Child Welfare Act (ICWA), the Supreme Court of
Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion
supporting holding that an action such as the putative father's would be governed by the state's
one-year statute of limitations, was not entitled to stare decisis effect. In T.N.F., a majority of the
justices sitting did not agree on a common rationale, as two of four participating justices agreed
that the state's one-year statute of limitations applied, one justice concurred in the result only, and
one justice dissented. There was no "narrower" reasoning agreed upon by all three affirming
justices. The concurring justice expressed no opinion on the statute of limitations issue, and in
agreeing with the result, he reasoned that ICWA did not give the plaintiff standing to sue.115 The two-
justice plurality, though agreeing that the state's one-year statute of limitations applied, specifically
disagreed with the concurring justice on the standing issue.116 Because a majority of the participating
justices in T.N.F. did not agree on any one ground for affirmance, it was not accorded stare decisis
effect by the state Supreme Court.

The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to
plurality decisions in which no majority of the justices participating agree to the reasoning and as
such are not authoritative interpretations binding on the Supreme Court.117

In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally divided opinion
on the matter,119 held that chapter 15938, Acts of 1933 must be allowed to stand, dismissing a quo
warranto suit without prejudice. The Court held:

In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional


nor its enforcement nor operation judicially interfered with, except by the concurrence of a
majority of the members of the Supreme Court sitting in the cause wherein the
constitutionality of the statute is brought in question or judicial relief sought against its
enforcement. Section 4 of Article 5, state Constitution.

Therefore in this case the concurrence of a majority of the members of this court in holding
unconstitutional said chapter 15938, supra, not having been had, it follows that the statute in
controversy must be allowed to stand and accordingly be permitted to be enforced as a
presumptively valid act of the Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282.This decision is not to be
regarded as a judicial precedent on the question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel. Hampton v. McClung, 47 Fla. 224,
37 So. 51.

Quo warranto proceeding dismissed without prejudice by equal division of the court on
question of constitutionality of statute involved.

In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by an equally
divided vote of a decision of the New York Court of Appeals that property of a New York branch of
a Russian insurance company was outside the scope of the Russian Soviet government's decrees
terminating existence of insurance companies in Russia and seizing their assets, while conclusive
and binding upon the parties as respects the controversy in that action, did not constitute an
authoritative "precedent."

In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in holding that
printed lyrics which had the same meter as plaintiffs' lyrics, but which were in form a parody of the
latter, did not constitute infringement of plaintiffs' copyrights, ruled that the prior case of Benny v.
Loew's, Inc.,122 which was affirmed by an equally divided court, was not binding upon it, viz:

Under the precedents of this court, and, as seems justified by reason as well as by authority,
an affirmance by an equally divided court is as between the parties, a conclusive
determination and adjudication of the matter adjudged; but the principles of law involved not
having been agreed upon by a majority of the court sitting prevents the case from becoming
an authority for the determination of other cases, either in this or in inferior courts.123

In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois dismissed the
appeal as it was unable to reach a decision because two judges recused themselves and the
remaining members of the Court were so divided, it was impossible to secure the concurrence of
four judges as is constitutionally required. The Court followed the procedure employed by the U.S.
Supreme Court when the Justices of that Court are equally divided,i.e. affirm the judgment of the
court that was before it for review. The affirmance is a conclusive determination and adjudication as
between the parties to the immediate case, it is not authority for the determination of other cases,
either in the Supreme Court or in any other court. It is not "entitled to precedential weight." The legal
effect of such an affirmance is the same as if the appeal was dismissed.125

The same rule is settled in the English Courts. Under English precedents,126 an affirmance by an
equally divided Court is, as between the parties, a conclusive determination and adjudication of the
matter adjudged; but the principles of law involved not having been agreed upon by a majority of the
court sitting prevents the case from becoming an authority for the determination of other cases,
either in that or in inferior courts.

After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance
by an equally divided court merely disposes of the present controversy as between the parties and
settles no issue of law; the affirmance leaves unsettled the principle of law presented by the case
and is not entitled to precedential weight or value. In other words, the decision only has res judicata
and not stare decisis effect. It is not conclusive and binding upon other parties as respects the
controversies in other actions.

Let us now examine the patent differences between the petition at bar and the Delfin Petition in
the Santiago case which will prevent the Santiago ruling from binding the present petitioners. To
start with, the parties are different. More importantly, the Delfin Petition did not contain the
signatures of the required number of registered voters under the Constitution: the requirement that
twelve per cent (12%) of all the registered voters in the country wherein each legislative district is
represented by at least three per cent (3%) of all the registered voters therein was not complied with.
For this reason, we ruled unanimously that it was not the initiatory petition which the COMELEC
could properly take cognizance of. In contrast, the present petition appears to be accompanied by
the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed
that an Order be issued fixing the time and dates for signature gathering all over the country, the
Lambino and Aumentado petition, prayed for the calling of a plebiscite to allow the Filipino people to
express their sovereign will on the proposition. COMELEC cannot close its eyes to these material
differences.
Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in
denying due course to the Lambino and Aumentado petition on the basis of its mistaken notion
that Santiago established the doctrine that R.A. 6735 was an insufficient law. As aforestressed, that
ruling of six (6) justices who do not represent the majority lacks precedential status and is non-
binding on the present petitioners.

The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the
PIRMA petition on the principle of res judicata. This was stressed by former Chief Justice Hilario G.
Davide Jr., viz:

The following are my reasons as to why this petition must be summarily dismissed:

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago
v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the
former is substantially identical to the latter, except for the reversal of the roles played by the
principal parties and inclusion of additional, yet not indispensable, parties in the present
petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,


MODERNIZATION, AND ACTION (PIRMA) and spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly
organized and existing under Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and
CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged in the body of the petition
therein, "proposes to undertake the signature drive for a people's initiative to amend the
Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding
members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the
hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding member of the Movement for
People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSAS did not
deny that they were founding members of PIRMA, and by their arguments, demonstrated
beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as
well as the others joining them, from the operation of the principle of res judicata, which
needs no further elaboration. (emphasis supplied)

Justice Josue N. Bellosillo adds:

The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must
have been rendered by a court having jurisdiction over the subject matter and the parties; (3)
it must be a judgment on the merits; and (4) there must be between the first and second
actions identity of parties, identity of subject matter, and identity of causes of action.127

Applying these principles in the instant case, we hold that all the elements of res judicata are
present. For sure, our Decision in Santiago v. COMELEC, which was promulgated on 19
March 1997, and the motions for reconsideration thereof denied with finality on 10 June
1997, is undoubtedly final. The said Decision was rendered by this Court which had
jurisdiction over the petition for prohibition under Rule 65. Our judgment therein was on the
merits, i.e., rendered only after considering the evidence presented by the parties as well as
their arguments in support of their respective claims and defenses. And, as between
Santiago v. COMELEC case and COMELEC Special Matter No. 97-001 subject of the
present petition, there is identity of parties, subject matter and causes of action.

Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties
in the instant case as some of the petitioners in the latter case were not parties to the former
case. However, a perusal of the records reveals that the parties in Santiago v. COMELEC
included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa, in
their capacities as founding members of PIRMA, as well as Atty. Pete Quirino-Quadra,
another founding member of PIRMA, representing PIRMA, as respondents. In the instant
case, Atty. Delfin was never removed, and the spouses Alberto and Carmen Pedrosa were
joined by several others who were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA Petition was filed by an entirely
separate and distinct group by removing some of the parties involved in Santiago v.
COMELEC and adding new parties. But as we said in Geralde v. Sabido128-

A party may not evade the application of the rule of res judicata by simply including
additional parties in the subsequent case or by not including as parties in the later
case persons who were parties in the previous suit. The joining of new parties does
not remove the case from the operation of the rule on res judicata if the party against
whom the judgment is offered in evidence was a party in the first action; otherwise,
the parties might renew the litigation by simply joining new parties.

The fact that some persons or entities joined as parties in the PIRMA petition but were not
parties in Santiago v. COMELEC does not affect the operation of the prior judgment against
those parties to the PIRMA Petition who were likewise parties in Santiago v. COMELEC, as
they are bound by such prior judgment.

Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only
PIRMA but not the petitioners.

VIII

Finally, let the people speak.

"It is a Constitution we are expounding" solemnly intoned the great Chief Justice John
Marshall of the United States in the 1819 case of M'cCulloch v. Maryland.129 Our Constitution is
not a mere collection of slogans. Every syllable of our Constitution is suffused with significance and
requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our
Constitution to underrule us.

The first principle enthroned by blood in our Constitution is the sovereignty of the people. We
ought to be concerned with this first principle, i.e., the inherent right of the sovereign people to
decide whether to amend the Constitution. Stripped of its abstractions, democracy is all about who
has the sovereign right to make decisions for the people and our Constitution clearly and
categorically says it is no other than the people themselves from whom all government authority
emanates. This right of the people to make decisions is the essence of sovereignty, and it
cannot receive any minimalist interpretation from this Court. If there is any principle in the
Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the people to
decide.

This Court should always be in lockstep with the people in the exercise of their
sovereignty. Let them who will diminish or destroy the sovereign right of the people to decide be
warned. Let not their sovereignty be diminished by those who belittle their brains to comprehend
changes in the Constitution as if the people themselves are not the source and author of our
Constitution. Let not their sovereignty be destroyed by the masters of manipulation who
misrepresent themselves as the spokesmen of the people.

Be it remembered that a petition for people's initiative that complies with the requirement that it "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" is but the first step in a long
journey towards the amendment of the Constitution. Lest it be missed, the case at bar involves but
a proposal to amend the Constitution. The proposalwill still be debated by the people and at this
time, there is yet no fail-safe method of telling what will be the result of the debate. There will still be
a last step to the process of amendment which is the ratification of the proposal by a majority of
the people in a plebiscite called for the purpose. Only when the proposal is approved by a
majority of the people in the plebiscite will it become an amendment to the Constitution. All
the way, we cannot tie the tongues of the people. It is the people who decide for the people
are not an obscure footnote in our Constitution.

The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us
not only sing paens to the people's sovereignty. Yes, it is neither too soon nor too late to let
the people speak.

IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on
Elections dated August 31, 2006, denying due course to the Petition for Initiative filed by Raul L.
Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered
voters who affixed their signatures thereon and toREMAND the petition at bar to the Commission on
Elections for further proceedings.

REYNATO S. PUNO
Associate Justice

____________________

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; TRADE UNION CONGRESS OF THE
PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW
GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO
UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S
PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO
PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P.
ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T.
VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and
PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE
ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR
and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its
President, MANUEL VILLAR, JR., Oppositors-Intervenors;

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.


SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

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

SEPARATE OPINION

QUISUMBING, J.:

1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato
S. Puno, I view the matter before us in this petition as one mainly involving a complex political
question.1 While admittedly the present Constitution lays down certain numerical requirements for
the conduct of a People's Initiative, such as the percentages of signatures – being 12% of the total
number of registered voters, provided each legislative district is represented by at least 3% – they
are not the main points of controversy. Stated in simple terms, what this Court must decide is
whether the Commission on Elections gravely abused its discretion when it denied the petition to
submit the proposed changes to the Constitution directly to the vote of the sovereign people in a
plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for
Reconsideration before coming to us, are of no moment in the face of the transcendental issue at
hand. What deserve our full attention are the issues concerning the applicable rules as well as
statutory and constitutional limitations on the conduct of the People's Initiative.

2. It must be stressed that no less than the present Constitution itself empowers the people to
"directly" propose amendments through their own "initiative." The subject of the instant petition is by
way of exercising that initiative in order to change our form of government from presidential to
parliamentary. Much has been written about the fulsome powers of the people in a democracy. But
the most basic concerns the idea that sovereignty resides in the people and that all government
authority emanates from them. Clearly, by the power of popular initiative, the people have the
sovereign right to change the present Constitution. Whether the initial moves are done by a
Constitutional Convention, a Constitutional Assembly, or a People's Initiative, in the end every
amendment -- however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the
ultimate will of the people expressed in the ballot, that matters.2

3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For
the COMELEC was just relying on precedents, with the common understanding that, pursuant to the
cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the COMELEC had been permanently
enjoined from entertaining any petition for a people's initiative to amend the Constitution by no less
than this Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I could
not hold the COMELEC liable for grave abuse of discretion when they merely relied on this Court's
unequivocal rulings. Of course, the Santiago and the PIRMA decisions could be reviewed and
reversed by this Court, as J. Reynato S. Puno submits now. But until the Court does so, the
COMELEC was duty bound to respect and obey this Court's mandate, for the rule of law to prevail.

4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and
Aumentado and 6.327 million voters, for further examination of the factual requisites before a
plebiscite is conducted. On page 4 of the assailed Resolution of the respondent dated August 31,
2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant Petition
appear to meet the required minimum per centum of the total number of registered voters", the
COMELEC could not give the Petition due course because of our view that R.A. No. 6735 was
inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly ponencia. Now that we
have revisited the Santiago v. COMELEC decision, there is only one clear task for COMELEC. In my
view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to
give due course to the petition for the initiative to amend our Constitution so that the sovereign
people can vote on whether a parliamentary system of government should replace the present
presidential system.

5. I am therefore in favor of letting the sovereign people speak on their choice of the form of
government as a political question soonest. (This I say without fear of media opinion that our judicial
independence has been tainted or imperiled, for it is not.) Thus I vote for the remand of the petition.
Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form and
substance and call for the holding of a plebiscite within the period mandated by the basic law, not
earlier than sixty nor later than ninety days from said certification. Only a credible plebiscite itself,
conducted peacefully and honestly, can bring closure to the instant political controversy.

LEONARDO A. QUISUMBING
Associate Justice

____________________

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.

G. R. No. 174299 October 25, 2006


MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

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

DISSENTING OPINION

CORONA, J.:

The life of the law is not logic but experience.1 Our collective experience as a nation breathes life to
our system of laws, especially to the Constitution. These cases promise to significantly contribute to
our collective experience as a nation. Fealty to the primary constitutional principle that the
Philippines is not merely a republican State but a democratic one as well behooves this Court to
affirm the right of the people to participate directly in the process of introducing changes to their
fundamental law. These petitions present such an opportunity. Thus, this is an opportune time for
this Court to uphold the sovereign rights of the people.

I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for
upholding the people's initiative. However, I wish to share my own thoughts on certain matters I
deem material and significant.

Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition

The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this
Court's ruling inSantiago v. COMELEC2 that: (1) RA 6753 was inadequate to cover the system of
initiative regarding amendments to the Constitution and (2) the COMELEC was permanently
enjoined from entertaining or taking cognizance of any petition for initiative regarding amendments to
the Constitution until a sufficient law was validly enacted to provide for the implementation of the
initiative provision.

However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be
unreasonable to make it apply to all petitions which were yet unforeseen in 1997. The fact is
that Santiago was focused on the Delfin petition alone.

Those who oppose the exercise of the people's right to initiate changes to the Constitution via
initiative claim thatSantiago barred any and all future petitions for initiative by virtue of the doctrines
of stare decisis and res judicata. The argument is flawed.

The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis.
Hence, I will address the argument from the viewpoint of res judicata.

Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the
merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an
absolute bar to a subsequent action involving the same claim, demand or cause of action.3 It has the
following requisites: (1) the former judgment or order must be final; (2) it must have been rendered
by a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or
order on the merits and (4) there must be identity of parties, of subject matter, and of cause of action
between the first and second actions.4
There is no identity of parties in Santiago and the instant case. While the COMELEC was also the
respondent inSantiago, the petitioners in that case and those in this case are different. More
significantly, there is no identity of causes of action in the two cases. Santiago involved amendments
to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the Constitution
while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled
that the present petition for initiative was barred by Santiago and, on that ground, dismissed the
petition.

The present petition and that in Santiago are materially different from each other. They are not
based on the same facts. There is thus no cogent reason to frustrate and defeat the present direct
action of the people to exercise their sovereignty by proposing changes to their fundamental law.

People's Initiative Should Not


Be Subjected to Conditions

People's initiative is an option reserved by the people for themselves exclusively. Neither Congress
nor the COMELEC has the power to curtail or defeat this exclusive power of the people to change
the Constitution. Neither should the exercise of this power be made subject to any conditions, as
some would have us accept.

Oppositors to the people's initiative point out that this Court ruled in Santiago that RA 6735 was
inadequate to cover the system of initiative on amendments to the Constitution and, thus, no law
existed to enable the people to directly propose changes to the Constitution. This reasoning is
seriously objectionable.

The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was
unprecedented and dangerously transgressed the domain reserved to the legislature.

While the legislature is authorized to establish procedures for determining the validity and sufficiency
of a petition to amend the constitution,5 that procedure cannot unnecessarily restrict the initiative
privilege.6 In the same vein, this Court cannot unnecessarily and unreasonably restrain the people's
right to directly propose changes to the Constitution by declaring a law inadequate simply for lack of
a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional intent
to empower the people will be severely emasculated, if not rendered illusory.

People's Right and Power to Propose Changes to the Constitution Directly Should not be
Unreasonably Curtailed

If Congress and a constitutional convention, both of which are mere representative bodies, can
propose changes to the Constitution, there is no reason why the supreme body politic itself – the
people – may not do sodirectly.

Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy"
as opposed to "representative democracy." The system of initiative allows citizens to directly
propose constitutional amendments for the general electorate to adopt or reject at the polls,
particularly in a plebiscite. While representative government was envisioned to "refine and enlarge
the public views, by passing them through the medium of a chosen body of citizens, whose wisdom
may best discern the true interest of their country, and whose patriotism and love of justice will be
least likely to sacrifice it to temporary or partial considerations,"7 the exercise of "direct democracy"
through initiative reserves direct lawmaking power to the people by providing them a method to
make new laws via the constitution, or alternatively by enacting statutes.8 Efforts of the represented
to control their representatives through initiative have been described as curing the problems of
democracy with more democracy.9

The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides
in the people and all government authority emanates from them."10 Unless the present petition is
granted, this constitutional principle will be nothing but empty rhetoric, devoid of substance for those
whom it seeks to empower.

The right of the people to pass legislation and to introduce changes to the Constitution is a
fundamental right and must be jealously guarded.11 The people should be allowed to directly seek
redress of the problems of society and representative democracy with the constitutional tools they
have reserved for their use alone.

Accordingly, I vote to GRANT the petition in G.R. No. 174513.

RENATO C. CORONA
Associate Justice

____________________

EN BANC

G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED


VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS
FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;

G.R. No. 174299 entitled


MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.
SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

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

SEPARATE OPINION

TINGA, J:

I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity,
and luminous scholarship are all so characteristic of the author that it is hardly a waste of pen and
ink to write separately if only to express my deep admiration for his disquisition. It is compelling
because it derives from the fundamental democratic ordinance that sovereignty resides in the
people, and it seeks to effectuate that principle through the actual empowerment of the sovereign
people. Justice Puno's opinion will in the short term engender reactions on its impact on present
attempts to amend the Constitution, but once the political passion of the times have been shorn, it
will endure as an unequivocal message to the taongbayan that they are to be trusted to chart the
course of their future.

Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately to highlight a
few other points which also inform my vote to grant the petitions.

I.

I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had not acquired
value as precedent and should be reversed in any case. I add that the Court has long been mindful
of the rule that it necessitates a majority, and not merely a plurality, in order that a decision can
stand as precedent. That principle has informed the members of this Court as they deliberated and
voted upon contentious petitions, even if this consideration is not ultimately reflected on the final
draft released for promulgation.

The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No.
6735 in those cases, the Court did not invalidate any provision of the statute. All the Court said then
was that the law was "inadequate". Since this "inadequate" law was not annulled by the Court, or
repealed by Congress, it remained part of the statute books.3

I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have
simply let the insufficiency stand given that it was not minded to invalidate the law itself. Article 9 of
the Civil Code provides that "[n]o judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws."4 As explained by the Court recently in Reyes v.
Lim,5 "[Article 9] calls for the application of equity, which[, in the revered Justice Cardozo's words,]
'fills the open spaces in the law.'"6 Certainly, any court that refuses to rule on an action premised on
Rep. Act No. 6735 on the ground that the law is "inadequate" would have been found in grave abuse
of discretion. The previous failure by the Court to "fill the open spaces" in Santiago further highlights
that decision's status as an unfortunate aberration.

I am mindful of the need to respect stare decisis, to the point of having recently decried a majority
ruling that was clearly minded to reverse several precedents but refused to explicitly say so.7 Yet the
principle is not immutable.8The passionate words of Chief Justice Panganiban in Osmeña v.
COMELEC9 bear quoting:

Before I close, a word about stare decisis. In the present case, the Court is maintaining the
ad ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent
urges reverence for the stability of judicial doctrines. I submit, however, that more important
than consistency and stability are the verity, integrity and correctness of jurisprudence. As
Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must
correct itself and move in cadence with the march of the electronic age. Error and illogic
should not be perpetuated. After all, the Supreme Court, in many cases, has deviated from
stare decisis and reversed previous doctrines and decisions.10 It should do no less in the
present case.11

Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare
its provisions as inadequate to accomplish the legislative purpose, then barred the enforcement of
the law. That ruling is erroneous, illogical, and should not be perpetuated.

II.

Following Justice Puno's clear demonstration why Santiago should not be respected as precedent, I
agree that the COMELEC's failure to take cognizance of the petitions as mandated by Rep. Act No.
6735 constitutes grave abuse of discretion correctible through the petitions before this Court.

The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v. COMELEC13,
and Sambarani v. COMELEC14 that "the functions of the COMELEC under the Constitution are
essentially executive and administrative in nature".15 More pertinently, in Buac v. COMELEC16, the
Court held that the jurisdiction of the COMELEC relative to the enforcement and administration of a
law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional mandate
"to enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite".17

Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC
under Rep. Act No. 6735 is to enforce and administer the said law, functions that are essentially
executive and administrative in nature. Even the subsequent duty of the COMELEC of determining
the sufficiency of the petitions after they have been filed is administrative in character. By any
measure, the COMELEC's failure to perform its executive and administrative functions under Rep.
Act No. 6735 constitutes grave abuse of discretion.

III.

It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as
they allegedly embrace more than one subject. Section 10 of Rep. Act No. 6735 classifies as a
"prohibited measure," a petition submitted to the electorate that embraces more than one
subject.18 On this point, reliance is apparently placed on the array of provisions which are to be
affected by the amendments proposed in the initiative petition.

Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the
laws passed by Congress "shall embrace only one subject which shall be expressed in the title
thereof".19 The one-subject requirement under the Constitution is satisfied if all the parts of the
statute are related, and are germane to the subject matter expressed in the title, or as long as they
are not inconsistent with or foreign to the general subject and title.20 An act having a single general
subject, indicated in the title, may contain any number of provisions, no matter how diverse they may
be, so long as they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means of carrying out the
general object.21

The precedents governing the one-subject, one-title rule under the Constitution should apply as well
in the interpretation of Section 10 of Rep. Act No. 6735. For as long as it can be established that an
initiative petition embraces a single general subject, the petition may be allowed no matter the
number of constitutional provisions proposed for amendment if the amendments are germane to the
subject of the petition.

Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the
form of government from bicameral-presidential to unicameral-parliamentary. Such a proposal may
strike as comprehensive, necessitating as it will the reorganization of the executive and legislative
branches of government, nevertheless it ineluctably encompasses only a single general subject still.

The 1987 Constitution (or any constitution for that matter) is susceptible to division into several
general spheres. To cite the broadest of these spheres by way of example, Article III enumerates the
guaranteed rights of the people under the Bill of Rights; Articles VI, VII and VIII provide for the
organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy
principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an
initiative petition that seeks to amend provisions which do not belong to the same sphere. For
example, had a single initiative petition sought not only to change the form of government from
presidential to parliamentary but also to amend the Bill of Rights, said petition would arguably have
been barred under Section 10, as that petition ostensibly embraces more than one subject, with
each subject bearing no functional relation to the other. But that is not the case with the present
initiative petitions.

Neither can it be argued that the initiative petitions embrace more than one subject since the
proposed amendments seek to affect two separate branches of government. The very purpose of
the initiative petitions is to fuse the powers of the executive and legislative branches of government;
hence, the amendments intended to effect such general intent necessarily affects the two branches.
If it required that to propose a shift in government from presidential to parliamentary, the
amendments to Article VII (Executive Branch) have to be segregated to a different petition from that
which would propose amendments to Article VI (Legislative Branch), then the result would be two
initiative petitions ─ both subject to separate authentications, consideration and even plebiscites, all
to effect one general proposition. This scenario, which entertains the possibility that one petition
would ultimately fail while the other succeeds, could thus allow for the risk that the executive branch
could be abolished without transferring executive power to the legislative branch. An absurd result,
indeed.

I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution
indubitably grants the people the right to seek amendment of the charter through initiative, and
mandates Congress to "provide for the implementation of the exercise of this right." In doing so,
Congress may not restrict the right to initiative on grounds that are not provided for in the
Constitution. If for example the implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition should not be sustained.
Congress is tasked with the implementation, and not the restriction of the right to initiative.

The one-subject requirement under Section 10 is not provided for as a bar to amendment under the
Constitution. Arguments can be supplied for the merit of such a requirement, since it would afford a
measure of orderliness when the vital question of amending the Constitution arises. The one-subject
requirement does allow the voters focus when deliberating whether or not to vote for the
amendments. These factors of desirability nonetheless fail to detract from the fact that the one-
subject requirement imposes an additional restriction on the right to initiative not contemplated by
the Constitution. Short of invalidating the requirement, a better course of action would be to insist
upon its liberal interpretation. After all, the Court has consistently adhered to a liberal interpretation
of the one-subject, one-title rule.22 There is no cause to adopt a stricter interpretative rule with regard
to the one-subject rule under Section 10 of Rep. Act No. 6735.

IV.

During the hearing on the petitions, the argument was raised that provisions of the Constitution
amended through initiative would not have the benefit of a reference source from the record of a
deliberative body such as Congress or a constitutional convention. It was submitted that this
consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII, which
expressly provided that only amendments, and not revisions, may be the subject of initiative
petitions.

This argument clearly proceeds from a premise that accords supreme value to the record of
deliberations of a constitutional convention or commission in the interpretation of the charter. Yet if
the absence of a record of deliberations stands as so serious a flaw as to invalidate or constrict
processes which change a constitution or its provisions, then the entire initiative process authorized
by the Constitution should be scarlet-marked as well.

Even if this position can be given any weight in the consideration of these petitions, I would like to
point out that resort to the records of deliberations is only one of many aids to constitutional
construction. For one, it should be abhorred if the provision under study is itself clear, plain, and free
from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:23

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk . . . We think it safer to construe the constitution from what appears
upon its face."24

Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the
constitutional record does not provide the exclusive or definitive answer on how to interpret the
provision. The intent of a constitutional convention is not controlling by itself, and while the historical
discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The
Court has even held in Vera v. Avelino25 that "the proceedings of the [constitutional] convention are
less conclusive of the proper construction of the fundamental law than are legislative proceedings of
the proper construction of a statute, since in the latter case it is the intent of the legislature that
courts seek, while in the former courts are endeavoring to arrive at the intent of the people through
the discussions and deliberations of their representatives."26 The proper interpretation of a
constitution depends more on how it was understood by the people adopting it than the framers'
understanding thereof.27

If there is fear in the absence of a constitutional record as guide for interpretation of any
amendments adopted via initiative, such absence would not preclude the courts from interpreting
such amendments in a manner consistent with how courts generally construe the Constitution. For
example, reliance will be placed on the other provisions of the Constitution to arrive at a harmonized
and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that
unlocks the meaning of the Constitution.

V.

I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions
should be remanded to the COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the
task of determining the sufficiency of the petitions, including the ascertainment of whether twelve
percent (12%) of all registered voters, including three percent (3%) of registered voters in every
legislative district have indeed signed the initiative petitions.28 It should be remembered that the
COMELEC had dismissed the initiative petitions outright, and had yet to undertake the determination
of sufficiency as required by law.

It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court
may at this juncture pronounce the initiative petitions as insufficient. The derivation of the factual
predicates leading to the suggestion is uncertain, considering that the trier of facts, the COMELEC in
this instance, has yet to undertake the necessary determination. Still, the premise has been floated
that petitioners have made sufficient admissions before this Court that purportedly established the
petitions are insufficient.

That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is
whether it serves well on the Court to usurp trier of facts even before the latter exercises its
functions? If the Court, at this stage, were to declare the petitions as insufficient, it would be akin to
the Court pronouncing an accused as guilty even before the lower court trial had began.

Matugas v. COMELEC29 inveighs against the propriety of the Court uncharacteristically assuming the
role of trier of facts, and resolving factual questions not previously adjudicated by the lower courts or
tribunals:

[P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing new
evidence before this Court, which in any case is not a trier of facts, and then ask it to
substitute its own judgment and discretion for that of the COMELEC.

The rule in appellate procedure is that a factual question may not be raised for the first time
on appeal, and documents forming no part of the proofs before the appellate court will not be
considered in disposing of the issues of an action. This is true whether the decision elevated
for review originated from a regular court or an administrative agency or quasi-judicial body,
and whether it was rendered in a civil case, a special proceeding, or a criminal case.
Piecemeal presentation of evidence is simply not in accord with orderly justice.30

Any present determination by the Court on the sufficiency of the petitions constitutes in effect a
trial de novo, the Justices of the Supreme Court virtually descending to the level of trial court judges.
This is an unbecoming recourse, and it simply is not done.

VI.

The worst position this Court could find itself in is to acquiesce to a plea that it make the choice
whether to amend the Constitution or not. This is a matter which should not be left to fifteen
magistrates who have not been elected by the people to make the choice for them.
A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow
the people to directly exercise that option. In fact, the position of Justice Puno which I share would
not even guarantee that the Lambino and Sigaw ng Bayan initiative petitions would be submitted to
the people in a referendum. The COMELEC will still have to determine the sufficiency of the petition.
Among the questions which still have to be determined by the poll body in considering the sufficiency
of the petitions is whether twelve percent (12%) of all registered voters nationwide, including three
percent (3%) of registered voters in every legislative district, have indeed signed the initiative
petitions.31

And even should the COMELEC find the initiative petitions sufficient, the matter of whether the
Constitution should be amended would still depend on the choice of the electorate. The oppositors
are clearly queasy about some of the amendments proposed, or the imputed motives behind the
amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow them
to convey their uneasiness to the public at large, as well as for the proponents of the amendment to
defend their proposal. The campaign period alone would allow the public to be involved in the
significant deliberation on the course our nation should take, with the ensuing net benefit of a more
informed, more politically aware populace. And of course, the choice on whether the Constitution
should be amended would lie directly with the people. The initiative process involves participatory
democracy at its most elemental; wherein the consequential debate would not be confined to the
august halls of Congress or the hallowed chambers of this Court, as it would spill over to the public
squares and town halls, the academic yards and the Internet blogosphere, the dining areas in the
homes of the affluent and the impoverished alike.

The prospect of informed and widespread discussion on constitutional change engaged in by a


people who are actually empowered in having a say whether these changes should be enacted,
gives fruition to the original vision of pure democracy, as formulated in Athens two and a half
millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in his famed
Funeral Oration, "We differ from other states in regarding the man who keeps aloof from public life
not as 'private' but as useless; we decide or debate, carefully and in person all matters of
policy, and we hold, not that words and deeds go ill together, but that acts are foredoomed to
failure when undertaken undiscussed."32

Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote
that assists the initiative process is one for the willful extinction of democracy or democratic
institutions. Such a consideration should of course properly play its course in the public debates and
deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the temptation
lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve
those anxieties by simply voting to enjoin any legal procedure that initiates the amendment or
revision of the fundamental law, even at the expense of the people's will or what the Constitution
allows. A vote so oriented takes the conservative path of least resistance, even as it may gain the
admiration of those who do not want to see the Constitution amended.

Still, the biases we should enforce as magistrates are those of the Constitution and the elements of
democracy on which our rule of law is founded. Direct democracy, as embodied in the initiative
process, is but a culmination of the evolution over the centuries of democratic rights of choice and
self-governance. The reemergence of the Athenian democratic ideal after centuries of tyrannical
rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta
granted limited rights to self-determination and self-governance only to a few English nobles; the
American Constitution was originally intended to give a meaningful voice only to free men, mostly
Caucasian, who met the property-holding requirements set by the states for voting. Yet even the
very idea of popular voting, limited as it may have already been within the first few years of the
American Union, met resistance from no less a revered figure as Alexander Hamilton, to whom the
progressive historian Howard Zinn attributes these disconcerting words:
The voice of the people has been said to be the voice of God; and however generally this
maxim has been quoted and believed, it is not true in fact. The people are turbulent and
changing; they seldom judge or determine right. Give therefore to the first class a distinct
permanent share in the government… Can a democratic assembly who annually revolve in
the mass of the people be supposed steadily to pursue the public good? Nothing but a
permanent body can check the imprudence of democracy…33

This utterly paternalistic and bigoted view has not survived into the present age of modern
democracy where a person's poverty, color, or gender no longer impedes the exercise of full
democratic rights. Yet a democracy that merely guarantees its citizens the right to live their lives
freely is incomplete if there is no corresponding allowance for a means by which the people have a
direct choice in determining their country's direction. Initiative as a mode of amending a constitution
may seem incompatible with representative democracy, yet it embodies an even purer form of
democracy. Initiative, which our 1987 Constitution saw fit to grant to the people, is a progressive
measure that is but a continuation of the line of evolution of the democratic ideal.

By allowing the sovereign people to directly propose and enact constitutional amendments, the
initiative process should be acknowledged as the purest implement of democratic rule under law.
This right granted to over sixty million Filipinos cannot be denied by the votes of less than eight
magistrates for reasons that bear no cogitation on the Constitution.

I VOTE to GRANT the petitions.

DANTE O. TINGA
Associate Justice

____________________

EN BANC

G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED


VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS
FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.


SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

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

DISSENTING OPINION

CHICO-NAZARIO, J.:

"The people made the constitution, and the people can unmake it. It is the creature of their will, and
lives only by their will. But this supreme and irresistible power to make or unmake, resides only in
the whole body of the people; not in any subdivision of them."

-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.

I express my concurrence in the discussions and conclusions presented in the persuasive and
erudite dissent of Justice Reynato S. Puno. However, I make some additional observations in
connection with my concurrence.

While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for
being the supreme law of the land, we should not lose sight of the truth that there is an ultimate
authority to which the Constitution is also subordinate – the will of the people. No less than its very
first paragraph, the Preamble,1expressly recognizes that the Constitution came to be because it was
ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in
Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." Thus, the resolution of the issues and controversies raised by the instant
Petition should be guided accordingly by the foregoing principle.

If the Constitution is the expression of the will of the sovereign people, then, in the event that the
people change their will, so must the Constitution be revised or amended to reflect such change.
Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people
whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides
for the means by which the revision or amendment of the Constitution may be proposed and ratified.

Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a)
by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The
Congress and the constitutional convention possess the power to propose amendments to, or
revisions of, the Constitution not simply because the Constitution so provides, but because the
sovereign people had chosen to delegate their inherent right to make such proposals to their
representatives either through Congress or through a constitutional convention.

On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power
Revolution of 1986, reserved to themselves the right to directly propose amendments to the
Constitution through initiative, to wit –

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.2

The afore-quoted section does not confer on the Filipino people the right to amend the Constitution
because, as previously discussed, such right is inherent in them. The section only reduces into
writing this right to initiate amendments to the Constitution where they collectively and willfully
agreed in the manner by which they shall exercise this right: (a) through the filing of a petition; (b)
supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c)
with each legislative district represented by at least three percent (3%) of the registered voters
therein; (d) subject to the limitation that no such petition may be filed within five years after the
ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a
delegation to Congress of the authority to provide the formal requirements and other details for the
implementation of the right.

It is my earnest opinion that the right of the sovereign people to directly propose amendments to the
Constitution through initiative is more superior than the power they delegated to Congress or to a
constitutional convention to amend or revise the Constitution. The initiative process gives the
sovereign people the voice to express their collective will, and when the people speak, we must be
ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign
people's right to initiative, rather than limits it. The enabling law which Congress has been tasked to
enact must give life to the said provision and make the exercise of the right to initiative possible, not
regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to
amend the Constitution more stringent, difficult, and less feasible, as compared to the other
constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under
Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the
extent reserved to the people by the provisions on initiative and referendum.

It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led
me to the conclusions, in support of the dissent of Justice Puno, that (a) The Commission on
Election (COMELEC) had indeed committed grave abuse of discretion in summarily dismissing the
petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and Erico
B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission
on Elections;3 (c) It is the sovereign people's inherent right to propose changes to the Constitution,
regardless of whether they constitute merely amendments or a total revision thereof; and (d) The
COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in the
exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court.

I
The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed
Lambino and Aumentado's petition for initiative entirely on the basis of the Santiago case which,
allegedly, permanently enjoined it from entertaining or taking cognizance of any petition for initiative
to amend the Constitution in the absence of a sufficient law.

After a careful reading, however, of the Santiago case, I believe in earnest that the permanent
injunction actually issued by this Court against the COMELEC pertains only to the petition for
initiative filed by Jesus S. Delfin, and not to all subsequent petitions for initiative to amend the
Constitution.

The Conclusion4 in the majority opinion in the Santiago case reads –

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 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.

It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary
Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC. The said TRO
enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative.5 It was this restraining order, more
particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent
by the Court. It would seem to me that the COMELEC and all other oppositors to Lambino and
Aumentado's petition for initiative gave unwarranted significance and weight to the first paragraph of
the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion,
preceding the dispositive portion, merely express the opinion of the ponente; while the
definite orders of the Court for implementation are found in the dispositive portion.

We have previously held that –

The dispositive portion or the fallo is what actually constitutes the resolution of the court and
which is the subject of execution, although the other parts of the decision may be resorted to
in order to determine the ratio decidendi for such a resolution. Where there is conflict
between the dispositive part and the opinion of the court contained in the text of the decision,
the former must prevail over the latter on the theory that the dispositive portion is the final
order while the opinion is merely a statement ordering nothing. Hence execution must
conform more particularly to that ordained or decreed in the dispositive portion of the
decision.6

Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of
the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that the
COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand,
the fallo only makes permanent the TRO7 against COMELEC enjoining it from proceeding with
the Delfin Petition. While the permanent injunction contemplated in the Conclusion encompasses
all petitions for initiative on amendments to the Constitution, the fallo is expressly limited to the Delfin
Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive portion or
the fallo should be controlling.

Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of
this Court's Resolution, dated 23 September 1997, in the case of People's Initiative for Reform,
Modernization and Action (PIRMA) v. The Commission on Elections, et al.8 The Court therein found
that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for
initiative to amend the Constitution for it only complied with the Decision in the Santiago case.

It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res
judicata because PIRMA participated in the proceedings of the said case, and had knowledge of
and, thus, must be bound by the judgment of the Court therein. As explained by former Chief Justice
Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case –

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v.
COMELEC(G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the
former is substantially identical to the latter, except for the reversal of the roles played by the
principal parties and inclusion of additional, yet not indispensable, parties in the present
petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,


MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly
organized and existing under Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and
CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged in the body of the petition
therein, "proposes to undertake the signature drive for a people's initiative to amend the
Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding
members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly represented at the
hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding member of the Movement for
People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSA'S did not
deny that they were founding members of PIRMA, and by their arguments, demonstrated
beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as
well as the others joining them, from the operation of the principle of res judicata, which
needs no further elaboration.9

While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to
the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same cause; and
its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be
one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject
matter and parties; and (d) there must be between the first and second actions, identity of parties, of
subject matter and of causes of action.10

Even though it is conceded that the first three requisites are present herein, the last has not been
complied with. Undoubtedly, the Santiago case and the present Petition involve different parties,
subject matter, and causes of action, and the former should not bar the latter.

In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone.
His petition does not qualify as the initiatory pleading over which the COMELEC can acquire
jurisdiction, being unsupported by the required number of registered voters, and actually imposing
upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition
for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3
million registered voters who affixed their signatures on the signature sheets attached thereto. Their
petition prays that the COMELEC issue an Order –

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers
of general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.

Although both cases involve the right of the people to initiate amendments to the Constitution, the
personalities concerned and the other factual circumstances attendant in the two cases differ. Also
dissimilar are the particular prayer and reliefs sought by the parties from the COMELEC, as well as
from this Court. For these reasons, I find that the COMELEC acted with grave abuse of discretion
when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves
the COMELEC to accord due course to a petition which on its face complies with the rudiments of
the law. COMELEC was openly negligent in summarily dismissing the Lambino and Aumentado
petition. The haste by which the instant Petition was struck down is characteristic of bad faith, which,
to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped
out of its duty and responsibility to determine the sufficiency thereof and sought protection and
justification for its craven decision in the supposed permanent injunction issued against it by the
Court in the Santiago case. The COMELEC had seemingly expanded the scope and application of
the said permanent injunction, reading into it more than what it actually states, which is surprising,
considering that the Chairman and majority of the members of COMELEC are lawyers who should
be able to understand and appreciate, more than a lay person, the legal consequences and
intricacies of the pronouncements made by the Court in the Santiago case and the permanent
injunction issued therein.

No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes
upon the COMELEC the mandate to set a date for plebiscite after a positive determination of the
sufficiency of a petition for initiative on amendments to the Constitution, viz –

SEC. 4. x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.

As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the
idea of discretion, and that the presumption is that the word "shall" when used, is
mandatory.11 Under the above-quoted constitutional provision, it is the mandatory or imperative
obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on
amendments to the Constitution and issue a certification on its findings; and (b) in case such petition
is found to be sufficient, to set the date for the plebiscite on the proposed amendments not earlier
than 60 days nor later than 90 days after its certification. The COMELEC should not be allowed to
shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the
summary dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition
is supported by 6.3 million signatures of registered voters. Should all of these signatures be
authentic and representative of the required percentages of registered voters for every legislative
district and the whole nation, then the initiative is a true and legitimate expression of the will of the
people to amend the Constitution, and COMELEC had caused them grave injustice by silencing their
voice based on a patently inapplicable permanent injunction.

II

We should likewise take the opportunity to revisit the pronouncements made by the Court in its
Decision in theSantiago case, especially as regards the supposed insufficiency or inadequacy of
Republic Act No. 6735 as the enabling law for the implementation of the people's right to initiative on
amendments to the Constitution.

The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave
rise to more questions rather than answers, due to the fact that there has never been a judicial
precedent wherein the Court invalidated a law for insufficiency or inadequacy. The confusion over
such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in
the Santiago case, to provide the following clarification in his separate opinion to the Resolution in
the PIRMA case, thus –

Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735
relating to Constitutional initiatives for failure to comply with the "completeness and sufficient
standard tests" with respect to permissible delegation of legislative power or subordinate
legislation. However petitioners attempt to twist the language in Santiago, the conclusion is
inevitable; the portion of R.A. No. 6735 was held to be unconstitutional.
It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly
that Republic Act No. 6735 was insufficient and inadequate, there is no categorical declaration
therein that the said statute was unconstitutional. The express finding that Republic Act No. 6735 is
unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the
Resolution in the PIRMA case, which was not concurred in by the other members of the Court.

Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is
insufficient and inadequate, is already tantamount to a declaration that the statute is unconstitutional,
it was rendered in violation of established rules in statutory construction, which state that –

[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute,
alleging unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v.
Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not decide
questions of a constitutional nature unless that question is properly raised and presented in
appropriate cases and is necessary to a determination of the case, i.e., the issue of
constitutionality must be lis mota presented (Tropical Homes v. National Housing Authority,
152 SCRA 540 [1987]).

First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of
Republic Act No. 6735 by ordering the COMELEC to dismiss the Delfin petition for the simple reason
that it does not constitute an initiatory pleading over which the COMELEC could acquire jurisdiction.
And second, the unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was
by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the
provisions thereof arranged and organized by Congress. The dissenting opinions rendered by
several Justices in the Santiago case reveal the other side to the argument, adopting the more
liberal interpretation that would allow the Court to sustain the constitutionality of Republic Act No.
6735. It would seem that the majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the statute.

The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and
again open to judicial review the constitutionality of Republic Act No. 6735; in which case, I shall cast
my vote in favor of its constitutionality, having satisfied the completeness and sufficiency of
standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by
Justice Puno on this matter in his dissenting opinion12 in the Santiago case, that reads –

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated,
Section 2 spells out the policy of the law; viz: "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." Spread out all over R.A. No. 6735 are the standards to canalize the delegated
power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law
states the number of signatures necessary to start a people's initiative, directs how initiative
proceeding is commenced, what the COMELEC should do upon filing of the petition for
initiative, how a proposition is approved, when a plebiscite may be held, when the
amendment takes effect, and what matters may not be the subject of any initiative. By any
measure, these standards are adequate.

III
The dissent of Justice Puno has already a well-presented discourse on the difference between an
"amendment" and a "revision" of the Constitution. Allow me also to articulate my additional thoughts
on the matter.

Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes
therein to the provisions of the Constitution already amount to a revision thereof, which is not
allowed to be done through people's initiative; Article XVII, Section 2 of the Constitution on people's
initiative refers only to proposals for amendments to the Constitution. They assert the traditional
distinction between an amendment and a revision, with amendment referring to isolated or
piecemeal change only, while revision as a revamp or rewriting of the whole instrument.13

However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test
that can establish with definiteness the distinction between an amendment and a revision, or
between a substantial and simple change of the Constitution.

The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative
basically affect only Article VI on the Legislative Department and Article VII on the Executive
Department. While the proposed changes will drastically alter the constitution of our government by
vesting both legislative and executive powers in a unicameral Parliament, with the President as the
Head of State and the Prime Minister exercising the executive power; they would not essentially
affect the other 16 Articles of the Constitution. The 100 or so changes counted by the oppositors to
the other provisions of the Constitution are constituted mostly of the nominal substitution of one word
for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently
pointed out in the dissent of Justice Puno, the changes proposed to transform our form of
government from bicameral-presidential to unicameral-parliamentary, would not affect the
fundamental nature of our state as a democratic and republican state. It will still be a representative
government where officials continue to be accountable to the people and the people maintain control
over the government through the election of members of the Parliament.

Furthermore, should the people themselves wish to change a substantial portion or even the whole
of the Constitution, what or who is to stop them? Article XVII, Section 2 of the Constitution which, by
the way it is worded, refers only to their right to initiative on amendments of the Constitution? The
delegates to the Constitutional Convention who, according to their deliberations, purposely limited
Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to
interpret the provision? Bearing in mind my earlier declaration that the will of the sovereign people is
supreme, there is nothing or no one that can preclude them from initiating changes to the
Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the expression
and embodiment of the people's will, and should the people's will clamor for a revision of the
Constitution, it is their will which should prevail. Even the fact that the people ratified the 1987
Constitution, including Article XVII, Section 2 thereof, as it is worded, should not prevent the exercise
by the sovereign people of their inherent right to change the Constitution, even if such change would
be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said
right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the
inherent right of the people as sovereign to change the Constitution, regardless of the extent thereof.

IV

Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance
of Lambino and Aumentado's petition for initiative to amend the Constitution. I reiterate that it would
be a greater evil if one such petition which is ostensibly supported by the required number of
registered voters all over the country, be summarily dismissed.
Giving due course and taking cognizance of the petition would not necessarily mean that the same
would be found sufficient and set for plebiscite. The COMELEC still faces the task of reviewing the
petition to determine whether it complies with the requirements for a valid exercise of the right to
initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the
registered voters' signatures or compliance with the requisite number of registered voters for every
legislative district, are already factual in nature and require the reception and evaluation of evidence
of the parties. Such questions are best presented and resolved before the COMELEC since this
Court is not a trier of facts.

In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August
2006 denying due course to the Petition for Initiative filed by Lambino and Aumentado be reversed
and set aside for having been issued in grave abuse of discretion, amounting to lack of jurisdiction,
and that the Petition be remanded to the COMELEC for further proceedings.

In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.

MINITA V. CHICO-NAZARIO
Associate Justice

____________________

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.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners
vs.COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

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

SEPARATE OPINION

VELASCO, JR., J.:

Introduction

The fate of every democracy, of every government based on the Sovereignty


of the people, depends on the choices it makes between these opposite
principles: absolute power on the one hand, and on the other the restraints of
legality and the authority of tradition.
—John Acton
In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive opinion
of Justice Reynato S. Puno upholding the people's initiative and raise some points of my own.

The issue of the people's power to propose amendments to the Constitution was once discussed in
the landmark case of Santiago v. COMELEC.1 Almost a decade later, the issue is once again before
the Court, and I firmly believe it is time to reevaluate the pronouncements made in that case.

The issue of Charter Change is one that has sharply divided the nation, and its proponents and
opponents will understandably take all measures to advance their position and defeat that of their
opponents. The wisdom or folly of Charter Change does not concern the Court. The only thing that
the Court must review is the validity of the present step taken by the proponents of Charter Change,
which is the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:

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.

In the Santiago case, the Court discussed whether the second paragraph of that section had been
fulfilled. It determined that Congress had not provided for the implementation of the exercise of the
people's initiative, when it held that Republic Act No. 6735, or "The Initiative and Referendum Act,"
was "inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation."2

With all due respect to those Justices who made that declaration, I must disagree.

Republic Act No. 6735 is the proper law for proposing constitutional amendments and it
should not have been considered inadequate.

The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in
the failings of the way the law was structured, to come to the conclusion that the law was
inadequate. The Court itself recognized the legislators' intent, but disregarded this intent. The law
was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an
afterthought. However, it was included, and it should not be excluded by the Court via a strained
analysis of the law. The difficult construction of the law should not serve to frustrate the intent of the
framers of the 1987 Constitution: to give the people the power to propose amendments as they saw
fit. It is a basic precept in statutory construction that the intent of the legislature is the controlling
factor in the interpretation of a statute.3 The intent of the legislature was clear, and yet RA 6735 was
declared inadequate. It was not specifically struck down or declared unconstitutional, merely
incomplete. The Court focused on what RA 6735 was not, and lost sight of what RA 6735 was.

It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a
basic precept of statutory construction that statutes should be construed not so much according to
the letter that killeth but in line with the purpose for which they have been enacted.4 The reading of
the law should not have been with the view of its defeat, but with the goal of upholding it, especially
with its avowed noble purpose.
Congress has done its part in empowering the people themselves to propose amendments to the
Constitution, in accordance with the Constitution itself. It should not be the Supreme Court that
stifles the people, and lets their cries for change go unheard, especially when the Constitution itself
grants them that power.

The court's ruling in the Santiago case does not bar the present petition because the fallo in
the Santiago case is limited to the Delfin petition.

The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al.,
against the COMELEC, et al., which sought to prevent the COMELEC from entertaining the "Petition
to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" filed by Atty.
Jesus Delfin. In the body of the judgment, the Court made the following conclusion, viz:

This petition must then be granted and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition or initiative on amendments on the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system (emphasis supplied).

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.

In the said case, the Court's fallo states as follows:

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R. A. 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 Resolutions 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 against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there
is conflict between the dispositive portion or fallo of the decision and the opinion of the court
contained in the text or body of the judgment, the former prevails over the latter. An order of
execution is based on the disposition, not on the body, of the decision.5 The dispositive portion is its
decisive resolution; thus, it is the subject of execution. The other parts of the decision may be
resorted to in order to determine the ratio decidendi for the disposition. Where there is conflict
between the dispositive part and the opinion of the court contained in the text or body of the
decision, the former must prevail over the latter on the theory that the dispositive portion is
the final order, while the opinion is merely a statement ordering nothing. Hence, the execution
must conform with that which is ordained or decreed in the dispositive portion of the decision.6

A judgment must be distinguished from an opinion. The latter is an informal expression of the views
of the court and cannot prevail against its final order or decision. While the two may be combined in
one instrument, the opinion forms no part of the judgment. So there is a distinction between the
findings and conclusions of a court and its Judgment. While they may constitute its decision and
amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the
grounds of a decision fail to reflect the exact views of the court, especially those of concurring
justices in a collegiate court. We often encounter in judicial decisions lapses, findings, loose
statements and generalities which do not bear on the issues or are apparently opposed to the
otherwise sound and considered result reached by the court as expressed in the dispositive part, so
called, of the decision.7

Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the
disposition in the latter case categorically made permanent the December 18, 1996 Temporary
Restraining Order issued against the COMELEC in the Delfin petition but did NOT formally
incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or
taking cognizance of any petition for initiative on amendments." Undeniably, the perpetual
proscription against the COMELEC from assuming jurisdiction over any other petition on Charter
Change through a People's Initiative is just a conclusion and cannot bind the poll body, for such
unending ban would trench on its constitutional power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall under
Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the jurisdiction to determine
the sufficiency of the petition on the initiative under Section 8, Rule 11 and the form of the petition
under Section 3, Rule I; hence, it cannot be barred from entertaining any such petition.

In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative
under RA 6735 and it can rule on the petition and its action can only be passed upon by the Court
when the same is elevated through a petition for certiorari. COMELEC cannot be barred from acting
on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not been declared
unconstitutional and hence still valid though considered inadequate in the Santiago case.

Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on
Elections8confirmed the statement of the Court in the Santiago case that the COMELEC was
"permanently enjoined from entertaining or taking cognizance of any petition for initiative on
amendments." Much reliance is placed on the ruling contained in a Minute Resolution which reads:

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 Decision of this
Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10,
1997.

Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To
reiterate, the dispositions in the Santiago case decision refer specifically to the December 18, 1996
TRO being made permanent against the COMELEC but do not pertain to a permanent injunction
against any other petition for initiative on amendment. Thus, what was confirmed or even affirmed in
the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which
became permanent, the declaration of the inadequacy of RA 6735, and the annulment of certain
parts of Resolution No. 2300 but certainly not the alleged perpetual injunction against the initiative
petition. Thus, the resolution in the PIRMA case cannot be considered res judicata to the Lambino
petition.

Amendment or Revision

One last matter to be considered is whether the petition may be allowed under RA 6735, since only
amendments to the Constitution may be the subject of a people's initiative.

The Lambino petition cannot be considered an act of revising the Constitution; it is merely an
attempt to amend it. The term amendment has to be liberally construed so as to effectuate the
people's efforts to amend the Constitution.

As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:

Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revision may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it provisions deemed essential
on account of changed conditions or to suppress portions of it that seem obsolete, or
dangerous, or misleading in their effect.

In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never
its intention to revise the whole Constitution. It merely concerns itself with amending a few provisions
in our fundamental charter.

When there are gray areas in legislation, especially in matters that pertain to the sovereign people's
political rights, courts must lean more towards a more liberal interpretation favoring the people's right
to exercise their sovereign power.

Conclusion

Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest
respect even from the courts. It is not something that can be overruled, set aside, ignored or
stomped over by whatever amount of technicalities, blurred or vague provisions of the law.

As I find RA 6735 to be adequate as the implementing law for the People's Initiative, I vote to grant
the petition in G.R. No. 174153 and dismiss the petition in G.R. No. 174299. The Amended Petition
for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado should be remanded to the
COMELEC for determination whether or not the petition is sufficient under RA 6735, and if the
petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735.
It is time to let the people's voice be heard once again as it was twenty years ago. And should this
voice demand a change in the Constitution, the Supreme Court should not be one to stand in its
way.

PRESBITERO J. VELASCO, JR.


Associate Justice

Footnotes

1
Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).

2
This provision states: "Requirements. — x x x x

(b) A 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, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters
therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

(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 herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly
written or printed at the top of every page of the petition."

3
This provision states: "Verification of Signatures. — The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards
used in the immediately preceding election."

4
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts.

5
Sections 1, 2, 3, and 4 of Article VII will be changed thus:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

6
Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.

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 conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress", "Senate",
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or
"Member[s] of the House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or "Acting President" shall be
changed to read "Prime Minister".

Section 3. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they
shall be deemed amended so as to conform to a unicameral Parliamentary System of
government; provided however that any and all references therein to "Congress", "Senate",
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or
"Member[s] of the House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or "Acting President" shall be
changed to read "Prime Minister".
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its sessions
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

(3) 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.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President.

(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. Thereafter, the Vice President, as Member of Parliament, shall immediately
convene the Parliament and shall initially preside over its session for the purpose of electing
the Prime Minister, who shall be elected by a majority vote of all

its members, from among themselves. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister
until the expiration of the term of incumbent President and Vice President.

7
As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified
paragraph 2, Section 5, thus:

Section 4. x x x x

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of
the thirtieth day of June 2010.

xxxx

Section 5. x x x x

(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. The duly elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.

8
336 Phil. 848 (1997); Resolution dated 10 June 1997.
9
The COMELEC held:

We agree with the Petitioners that this Commission has the solemn Constitutional duty to
enforce and administer all laws and regulations relative to the conduct of, as in this case,
initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 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. x x x.

The Congress shall provide for the implementation of the exercise of this right.

The afore-quoted provision of the Constitution being a non self-executory provision needed
an enabling law for its implementation. Thus, in order to breathe life into the constitutional
right of the people under a system of initiative to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted
Republic Act No. 6735.

However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned.

The Supreme Court likewise declared that this Commission should be permanently enjoined
from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is
represented by at least three per centum of the registered voters therein, still the Petition
cannot be given due course since the Supreme Court categorically declared R.A. No. 6735
as inadequate to cover the system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this right of the people remains
nothing but an "empty right", and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution.

Considering the foregoing, We are therefore constrained not to entertain or give due course
to the instant Petition.
10
Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport
and General Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong
Bayan Movement Foundation, Inc.

11
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa,
Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino
Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante,
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby
Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa
Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA),
Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus,
Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong,
Integrated Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader
Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmeňa III, Jamby Madrigal, Jinggoy Estrada,
Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.

12
This provision states: "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."

13
I RECORD, 387-388.

14
During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento
made the following report (I RECORD 389):

MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and
Transitory Provisions decided to retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I discovered that 13 States
provide for a system of initiative as a mode of amending the Constitution — Arizona,
Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada,
North Dakota, Ohio, Oklahoma and Oregon. The initiative for ordinary laws only is used in
Idaho, Maine, Montana and South Dakota. So, I am happy that this was accepted or retained
by the Committee.

xxxx

The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898
when South Dakota adopted the initiative in its constitution. The Swiss cantons experimented
with initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as a mode of
amending their national constitution. Initiatives promote "direct democracy" by allowing the
people to directly propose amendments to the constitution. In contrast, the traditional mode
of changing the constitution is known as "indirect democracy" because the amendments are
referred to the voters by the legislature or the constitutional convention.

15
Florida requires only that the title and summary of the proposed amendment are "printed in clear
and unambiguous language." Advisory Opinion to the Attorney General RE Right of Citizens to
Choose Health Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida.
16
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz.
211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644
(1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town
Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v.
Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.

17
407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly,
743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d.
1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001).

18
89 P.3d 1227, 1235 (2004).

19
Stumpf v. Law, 839 P. 2d 120, 124 (1992).

20
Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.

21
Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7
September 2006.

22
www.ulap.gov.ph.

23
www.ulap.gov.ph/reso2006-02.html.

24
The full text of the proposals of the Consultative Commission on Charter Change can be
downloaded at its official website at www.concom.ph.

25
The Lambino Group's Memorandum, p. 5.

26
Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be
elected for a term of five years "without limitation as to the number thereof."

27
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the
interim Parliament "shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified." Also, under the proposed Section 5(2), Article XVIII, of the same
Transitory Provisions, the interim Parliament "shall provide for the election of the members of
Parliament."

28
Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the
interim Parliament, within 45 days from ratification of the proposed changes, "shall convene to
propose amendments to, or revisions of, this Constitution."

29
448 So.2d 984, 994 (1984), internal citations omitted.

30
698 P.2d 1173, 1184 (1985).

31
I RECORD 386, 392, 402-403.

32
196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).

33
392 P.2d 636, 638 (1964).
34
930 P.2d 186, 196 (1996), internal citations omitted.

35
Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

36
Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281,
1286 (1978).

37
Id.

38
Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).

39
California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).

40
See note 44, infra.

41
Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294
(2003).

42
238 So.2d 824 (1970).

43
Id. at 830-832.

44
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral
arguments.

45
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44;
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining
Corporation v. Rodriguez, 66 Phil. 259 (1938).

46
882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in
question was not a revision.

47
Section 1, Article V of the Constitution.

48
Section 11(1), Article XVI of the Constitution.

49
Section 2, Article VII of the Constitution.

50
This section provides: "The Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them."

51
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999).

52
G.R. No. 129754, Resolution dated 23 September 1997.

53
Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming the Ratification of
the Constitution of the Republic of the Philippines Adopted by the Constitutional Commission of
1986, including the Ordinance Appended thereto."

PANGANIBAN, CJ.:
1
Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of Law" in her speech before
the Global Forum on Liberty and Prosperity held on October 18-20, 2006 in Manila. She further
stated: "Without the rule of law, government officials are not bound by standards of conduct. Without
the rule of law, the dignity and equality of all people is not affirmed and their ability to seek redress
for grievances and societal commitments is limited. Without the rule of law, we have no means of
ensuring meaningful participation by people in formulating and enacting the norms and standards
which organize the kinds of societies in which we want to live."

2
GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my Separate Opinion is
reproduced in full:

"Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds
that:

'(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining
the 'initiatory' Delfin Petition.

'(2) While the Constitution allows amendments to 'be directly proposed by the people through
initiative,' there is no implementing law for the purpose. RA 6735 is 'incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned.'

'(3) Comelec Resolution No. 2300, 'insofar as it prescribes rules and regulations on the
conduct of initiative on amendments to the Constitution, is void.'

"I concur with the first item above. Until and unless an initiatory petition can show the
required number of signatures — in this case, 12% of all the registered voters in the
Philippines with at least 3% in every legislative district — no public funds may be spent and
no government resources may be used in an initiative to amend the Constitution. Verily, the
Comelec cannot even entertain any petition absent such signatures. However, I dissent most
respectfully from the majority's two other rulings. Let me explain.

"Under the above restrictive holdings espoused by the Court's majority, the Constitution
cannot be amended at all through a people's initiative. Not by Delfin, not by PIRMA, not by
anyone, not even by all the voters of the country acting together. This decision will effectively
but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the
basic law. At the very least, the majority holds the right hostage to congressional discretion
on whether to pass a new law to implement it, when there is already one existing at present.
This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article
XVII of the Constitution, as follows:

their final weapons against political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact transparency, accountability
and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse
must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground
of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT
the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in
proposing amendments to the Constitution."

3
GR No. 129754, September 23, 1997 (still unpublished in the Philippine Reports or in the Supreme
Court Reports Annotated). Again, for ease of reference, I reproduce my Separate Opinion in full:

"Petitioners assail the July 8, 1997 Resolution of Respondent Commission dismissing their
petition for a people's initiative to amend the Constitution. Said petition before the Comelec
(henceforth, PIRMA petition) was backed up by nearly six (6) million signatures constituting
about 16% of the registered voters of the country with at least 3% in each legislative district.
The petition now before us presents two grounds:

"1. In refusing to act on the PIRMA petition, the Comelec allegedly acted with grave abuse of
discretion amounting to lack or excess of jurisdiction; and

"2. In declaring R.A. 6735 "inadequate to cover its system of initiative on amendments to the
Constitution" and "declaring void those parts of Resolution 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of [an] initiative [on] amendments
to the Constitution," the Supreme Court's Decision in G.R. No. 127325 entitled Miriam
Defensor Santiago vs. Commission on Elections (hereafter referred to as Santiago) should
be reexamined because said Decision is allegedly "unconstitutional," and because, in any
event, the Supreme Court itself, in reconsidering the said issue per its June 10, 1997
Resolution, was deadlocked at six votes one each side.

"The following in my position on each of these two issues:

First Issue:

No Grave Abuse of Discretion in Comelec's Refusal to Act

"The Respondent Commission's refusal to act on the "prayers" of the PIRMA petition cannot
in any wise be branded as "grave abuse of discretion." Be it remembered that the Court's
Decision in Santiago permanently enjoined the Comelec "from entertaining or taking
cognizance of any petition for initiative on amendments to the

4
Republic v. COCOFED, 423 Phil. 735, December 14, 2001.

5
Well-entrenched is this definition of grave abuse of discretion. Id.; Benito v. Comelec, 349 SCRA
705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and
Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.

6
In PIRMA, I submitted as follows: "I believed, and still do, that the majority gravely erred in
rendering such a sweeping injunction [that covered ANY petition, not just the Delfin petition], but I
cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's
ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had
no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Regusal to act on
the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would
have constituted defiance of the Court and would have been struck down as grave abuse of
discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable
controversies."
7
42 Am. Jr. 2d, §26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33 So 2d 475, 250 Ala
137; Tacker v. Board of Comrs., 127 Fla 248, 170 So 458; Hoxie V. Scott, 45 Neb 199, 63 NW 387;
Gill v. Board of Comrs., 160 NC 176, 76, SE 204.

8
Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.

9
Article XVII (AMENDMENTS OR REVISIONS)

"SEC. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon the 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
though 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.

"SEC. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question of
calling such a convention.

"SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.

"Any amendment under Section 2 hereof shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety
days after the certification by the Commission on Elections of the sufficiency of the petition."

10
Republic Act 6735, Sec. 10, provides:

"SEC. 10. Prohibited Measures. – The following cannot be the subject of an initiative or
referendum petition:

(a) No petition embracing more than one subject shall be submitted to the electorate;
and

(b) Statutes involving emergency measures, the enactment of which are specifically
vested in Congress by the Constitution, cannot be subject to referendum until ninety
(90) days after its effectivity."

11
The principle of separation of powers operates at the core of a presidential form of government.
Thus, legislative power is given to the legislature; executive power, to a separate executive (from
whose prominent position in the system, the presidential nomenclature is derived); and judicial
power, to an independent judiciary. This system embodies interdependence by separation.
On the other hand, a parliamentary system personifies interdependence by integration, its essential
features being the following: "(1) The members of the government or cabinet or the executive arm
are, as a rule, simultaneously members of the legislature. (2) The government or cabinet, consisting
of the political leaders of the majority party or of a coalition who are also members of the legislative,
is in effect a committee of the legislature. (3) The government or cabinet has a pyramidal structure,
at the apex of which is the Prime Minister or his equivalent. (4) The government or cabinet remains
in power only for as long as it enjoys the support of the majority of the legislature. (5) Both
government and legislature are possessed of control devices with which each can demand of the
other immediate political responsibility." These control devices are a vote of no-confidence
(censure), whereby the government may be ousted by the legislature; and the power of the
government to dissolve the legislature and call for new elections. (J. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY, Vol. II, 17-18
(1988 ed.).

With respect to the transformation from a bicameral to a unicameral legislature, the change involves
the form of representation and the lawmaking process.

12
Attached to the Opposition-in-Intervention of Intervenors OneVoice Inc., etc., is a photocopy of the
Certification dated August 23, 2006, issued by Atty. Marlon S. Casquejo, the election officer for the
3rd District and the officer-in-charge for the 1st and the 2nd Districts of Davao City. The Certification
states that "this office (First, Second and Third District, Davao City) has not verified the signatures of
registered voters x x x."

13
In People v. Veneracion, the Court held: "Obedience to the rule of law forms the bedrock of our
system of justice. If judges, under the guide of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the duties of their
office, then law becomes meaningless. A government of laws, not of men, excludes the exercise of
broad discretionary powers by those acting under its authority. Under this system, judges are guided
by the Rule of Law, and ought 'to protect and enforce it without fear or favor,' resist encroachments
by governments, political parties, or even the interference of their own personal beliefs." (249 SCRA
244, October 13, 1995, per Kapunan, J.)

14
An American professor on legal philosophy, A. Altman, puts it thus: "By ratifying the constitution
that included an explicit amendment process, the sovereign people committed themselves to
following the rule of law, even when they wished to make changes in the basic system of
government." A. ALTMAN, ARGUING ABOUT LAW 94 (2001).

15
See my Separate Opinion in Francisco Jr. v. House of Representatives, 415 SCRA 45, November
10, 2003.

16
See, for instance, the front page Malaya report entitled "Lobbyists soil dignity of Supreme Court"
(October 23, 2006).

17
Lk 8:17.

YNARES-SANTIAGO, J.:

1
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

2
SEC. 5. Requirements.— x x x
(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 therefore;

c.4. that it is not one of the exceptions provided herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary proposition in not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition.

3
SEC. 3. Definition of Terms.— For purposes of this Act, the following terms shall mean: x x x

(d) "Proposition" is the measure proposed by the voters.

4
I Record, Constitutional Commission 387-389 (July 9, 1986).

5
Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK 118 (1965).

6
Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be
expressed in the title thereof.

7
The late Senator (then Congressman) Raul S. Roco stated this fact in his sponsorship presentation
of H.B. No. 21505, thus:

xxxx

D. Prohibited Subjects.

The bill provides for two kinds of measures which cannot be the subject of an initiative or
referendum petition. A petition that embraces more than one subject cannot be submitted to
the electorate as it would be violative of the constitutional proscription on passing bills
containing more than one subject, and statutes involving emergency measures cannot be
subject to referendum until 90 days after its effectivity. [Journal and record of the house of
representatives, Second Regular Session, Vol. 6, p. 975 (February 14, 1989).]

8
Memorandum of petitioner Aumentado, p. 117.

9
The proposed Section 4(3) of Article XVIII of the Constitution states that Senators whose term of
office ends in 2010 shall be members of parliament until noon of the thirtieth day of June 2010. No
counterpart provision was provided for members of the House of Representatives who, as members
of the interim parliament under the proposed changes, shall schedule the elections for the regular
parliament in its discretion.
10
The proposed Section 4(3), Article XVIII of the Constitution states that the interim parliament shall
convene to propose amendments to, or revisions of, the Constitution within 45 days from ratification
of the proposed changes.

11
The United Kingdom, for instance, has a two-house parliament, the House of Lords and the House
of Commons.

12
Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in Separate Opinion of J.
Hilario G. Davide, Jr. in PIRMA v. COMELEC, G.R. No. 129754, September 23, 1997, p. 7.

13
151-A Phil. 35 (1973).

14
196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).

15
801 P. 2d 1077 (Cal. 1990).

16
583 P. 2d 1281 (Cal. 1982).

17
Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal. 1982).

18
Supra note 13. It may well be pointed out that in making the distinction between amendment and
revision, Justice Antonio relied not only in the analogy presented in Wheeler v. Board of Trustees, 37
S.E. 2d 322, but cited also the seminal ruling of the California Supreme Court in McFadden v.
Jordan, supra.

19
Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing Pangasinan Transportation
Co. v. PSC, 40 O.G., 8th Supp. 57.

20
The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr. Joaquin G. Bernas, S.J., p.
1161.

21
Id.

22
Supra note 14.

23
The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr. Joaquin G. Bernas, S.J., p.
567, citing B. Schwartz, I The Powers of Government (1963).

24
16 C.J.S. §3 at 24.

25
14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.

26
A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin Bernas, S.J., p.
A15.

27
Article II, Section 1 of the 1987 Constitution.

SANDOVAL-GUTIERREZ, J.:

1
Works, Letter 164.
2
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

3
Resolution dated June 10, 1997, G.R. No. 127325.

4
G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its founding members,
spouses Alberto Pedrosa and Carmen Pedrosa.

5
Entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a People's
Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by
Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift from the
Presidential to the Parliamentary System."

6
Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III,
Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr., Alternative Law Groups, Inc.,
Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmeña III, Jamby A.S.
Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada,
Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel,
Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's
Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby
Santiago and Reginald Pamugas, and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D.
Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.

7
"Grounds for contempt

3. From the time the so-called People's Initiative (hereafter PI) now subject of Lambino v.
Comelec, was initiated, respondents did nothing to stop what was clearly lawless, and
even arguably winked at, as it were, if not condoned and allowed, the waste and
misuse of its personnel, time, facilities and resources on an enterprise that had no
legal basis and in fact was permanently enjoined by this Honorable Court in
1997. Seemingly mesmerized, it is time to disenthrall them.

3.1. For instance, undersigned counsel happened to be in the Senate on August 29, 2006
(on other business) when respondent Chair sought to be stopped by the body from
commenting on PI out of prudential considerations, could not be restrained. On contentious
issues, he volunteered that Sigaw ng Bayan would not cheat in Makati as it was the
opposition territory and that the fact that out of 43,405 signatures, only 7,186 were
found authentic in one Makati District, to him, showed the "efficiency" of Comelec
personnel. He could not appreciate 1) that Sigaw had no choice but to get the
constitutionality-required 3% in every district, [Const., Art. VII, Sec. 2] friendly or
otherwise, including administration critics' turfs, and 2) that falsus in 36,319 (93.30%)
falsus in omnibus, in an exercise that could never be free, orderly, honest and
credible, another constitutional requirement. [Nothing has been heard about probing and
prosecuting the falsifiers.]

xxxxxxxxx

3.2. It was excessively obvious to undersigned and other observers that respondent
Chairman, straining at the leash, was lawyering for Sigaw ng Bayan in the Senate! It
was discomfiting that he would gloss over the seeming wholesale falsification of
96.30% of the signatures in an exercise with no credibility! Even had he been asked,
he should have pled to be excused from answering as the matter could come up
before the Comelec for an official collegial position (different from conceding that it is
enjoined).

xxxxxxxxx

4. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even
issued widely-publicized written directives to the field, [Annex C, as to Commissioner
Brawner; that as to Commissioner Borra will follow.] while the Commission itself was
trying to be careful not to be explicit in what it was abetting implicitly, in hypocritical
defiance of the injunction of 1997.

8
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No. 72424, February 13,
1989, 170 SCRA 246.

9
Supra.

10
Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA 59; Albert v. Court of
First Instance of Manila (Branch VI), L-26364, May 29, 1968, 23 SCRA 948.

11
56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch VI), id.

12
Supra.

13
Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23, 1997.

14
G.R. No. 109645, March 4, 1996, 254 SCRA 234.

15
Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 CSRA 307, citing
Moreno, Philippine Law Dictionary (1988), 3rd ed. (citing Santiago v. Valenzuela, 78 Phil. 397,
[1947]).

16
Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999, 305 SCRA 303, citing
Government v. Jalandoni, No. 837-R, August 30, 1947, 44 O.G. 1840.

17
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale
University Press, 1921), pp. 33-34.

18
William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice Hall Inc.,) 1973, p. 49.

19
Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.

20
July 9, 1986. Records of the Constitutional Commission, No. 26.

21
Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996 Ed., p.
1161.

22
242 N. W. 891 259 Mich 212.

23
State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55.
18
City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.

25
Adams v. Gunter Fla, 238 So. 2d 824.

26
196 P.2d 787.

27
Adams v. Gunter Fla. 238 So.2d 824.

28
Mc Fadden v. Jordan, supra.

29
Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).

30
Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION, Philippine Daily Inquirer,
September 25, 2006.

31
See Sections 8-12 for national initiative and referendum, and sections 13-19 for local initiative and
referendum.

32
Section 2. Statement of 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.

33
Section 3. Definition of terms.-

xxx

a.1. Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;

xxx

34
See Section 3(e).

35
Section 5 (b) – A 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, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised only after five (5) years from the ratification of the
1987 Constitution and only once every five (5) years thereafter.

xxx

36
Section 9 (b) – The proposition in an initiative on the Constitution approved by a majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

37
7 How (48 US) 1 (1849).

38
328 US 549 (1946).

39
77 Phil. 192 (1946).
40
103 Phi. 1051 (1957).

41
G.R. No. 35546, September 17, 1974, 50 SCRA 559.

42
369 US 186 (1962).

43
G.R. No. 85344, December 21, 1989, 180 SCRA 496.

44
G.R. No. 88211, September 15, 1989, 177 SCRA 668.

45
Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50 SCRA 30.

CALLEJO, SR., J.:

1
Entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds
Therefor.

2
Section 2(1), Article IX-C, 1987 Constitution.

3
Petition, pp. 12-14.

4
Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25, 2003, 409 SCRA
455, 480.

5
Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, 2004, 431 SCRA 469, 480.

6
People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610.

7
Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L-35630,
November 25, 1982, 118 SCRA 664.

8
People v. Court of Appeals, supra.

9
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

10
Article 8, New Civil Code provides that "[j]udicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines."

11
Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278 SCRA 284.

12
Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.

13
974 S.W.2d 451 (1998).

14
Id. at 453.

15
Entitled In Re: Rules and Regulations Governing the Conduct of Initiative in the Constitution, and
Initiative and Referendum on National and Local Laws.

16
Supra note 10, p. 157.
17
G.R. No. 129754.

18
Minute Resolution, September 23, 1997, pp. 1-2.

19
Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422.

20
Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23 SCRA 948.

21
Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA
506.

22
Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado, Flerida Ruth P. Romero,
Josue N. Bellosillo, Santiago M. Kapunan and Justo P. Torres, Jr. fully concurred in the ponencia of
Justice Davide.

23
Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno, Ricardo J. Francisco, Jr. and
Artemio V. Panganiban (now Chief Justice).

24
The voting on the motion for reconsideration was as follows: Six Justices, namely, Chief Justice
Narvasa, and Justices Regalado, Davide, Jr., Romero, Bellosillo and Kapunan, voted to deny the
motions for lack of merit; and six Justices, namely, Justices Melo, Puno, Mendoza, Francisco, Jr.,
Regino C. Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his
opinion that the matter was not ripe for judicial adjudication. Justices Teodoro R. Padilla and Torres
inhibited from participation in the deliberations.

25
House Bill No. 457 filed by then Rep. Nachura during the Twelfth Congress.

26
See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 23, 2002, 389 SCRA 480.

27
London Street Tramways Co., Ltd. v. London County Council, [1898] A.C. 375, cited in COOLEY,
A Treatise on the Constitutional Limitations 117-118.

28
Amended Petition for Initiative, pp. 4-7.

29
Id. at 7.

30
I Records of the Constitutional Commission 373.

31
Id. at 371.

32
Id. at 386.

33
Id. at 392.

34
Id. at 402-403.

35
No. L-36142, March 31, 1973, 50 SCRA 30.

36
Id. at 367.
37
SINCO, Philippine Political Law 43-44.

38
37 S.E.2d 322 (1946).

39
Id. at 330.

40
Id.

41
Sounding Board, Philippine Daily Inquirer, April 3, 2006.

42
Introduction to the Journal of the Constitutional Commission.

43
BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9.

44
SCHWARTZ, CONSTITUTIONAL LAW 1.

45
Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.

46
See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).

47
Id.

48
196 P.2d 787 (1948).

49
Id. at 798.

50
Ellingham v. Dye, 99 N.E. 1 (1912).

51
Dissenting Opinion of Justice Puno, p. 36.

52
Id. at 39.

53
Supra note 38.

54
McFadden v. Jordan, supra note 48.

55
Id. at 799.

56
Supra note 41.

57
Annex "1363."

58
Annex "1368."

59
Annex "1369."

60
Annex "1370."

61
Annex "1371."
62
Annex "1372."

63
Annex "1374."

64
Annex "1375."

65
Annex "1376."

66
Annex "1377."

67
Annex "1378."

68
Annex "1379."

69
Annex "1380."

70
Annex "1381."

71
Annex "1382."

72
Annex "1383."

73
Annex "1385."

74
Annex "1387."

75
Annex "1388."

76
Annex "1389."

77
Annex "1391."

78
Annex "1392."

79
Annex "1393."

80
Annex "1395."

81
Annex "1396."

82
Annex "1397."

83
Annex "1398."

84
Annex "1399."

85
Annex "1400."

86
Annex "1401."
87
Annex "1402."

88
Annex "1404."

89
Annex "1405."

90
Annex "1406."

91
Annex "1407."

92
Annex "1408."

93
Annex "1409."

94
Annex "1410."

95
Annex "1411."

96
Annex "1412."

97
Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423.

98
See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9, 1988, 158 SCRA 508.

99
Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394.

100
Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 SCRA 639.

101
Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.

102
Tañada v. Cuenco, 103 Phil. 1051 (1957).

103
Id.

104
G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.

105
Dissenting Opinion of Justice Fernando in Javellana v. Executive Secretary, supra note 36.

106
119 N.W. 408 (1909).

107
22 Minn. 400 (1876).

108
96 S.W. 396 (1906).

109
63 N.J. Law 289.

110
77 Miss. 543 (1900).

111
Section 1, Article II, 1987 Constitution.
112
Dissenting Opinion of Justice Puno, p. 49.

113
COOLEY, A Treatise on the Constitutional Limitations 56, cited in Ellingham v. Dye, supra.

114
Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).

115
ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO, THE SUPREME COURT
AND CONSTITUTIONAL DEMOCRACY (1984)

116
McBee v. Brady, 100 P. 97 (1909).

117
McFadden v. Jordan, supra note 48.

118
Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra.

119
15 N.W. 609 (1883).

120
Id. at 630.

AZCUNA, J.:

1
G.R. No. 127325, March 19, 1997 and June 10, 1997.

2
100 Phil. 501 (1956).

PUNO, J.:

1
M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819).

2
Section 1, Article II, 1987 Constitution.

3
270 SCRA 106, March 19, 1997.

4
Id. at 153.

5
Id. at 157.

6
Justice Teodoro R. Padilla did not take part in the deliberation as he was related to a co-petitioner
and co-counsel of petitioners.

7
Justice Davide (ponente), Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo, and
Kapunan.

8
Resolution dated June 10, 1997, G.R. No. 127325.

9
People's Initiative for Reforms, Modernization and Action (PIRMA) v. Commission on
Elections, G.R. No. 129754, September 23, 1997.

10
Amended Petition for Initiative, pp. 4-7.
11
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

12
Petition, pp. 12-14.

13
Advisory issued by Court, dated September 22, 2006.

14
Exhibit "B," Memorandum of Petitioner Lambino.

15
Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre Dame Law Rev.,
1911-1912, (May 2005).

16
Ibid.

17
Id. at 1913.

18
Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson
and the Consequences of Pragmatic Adjudication, 53 Utah Law Rev. 53, 67 (2002).

19
Id. at 68.

20
Id. at 69.

21
Id. at 67.

22
Id. at 69.

23
Consovoy, supra note 18, at 57.

24
Id. at 58.

25
Id. at 64.

26
Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis, dissenting).

27
Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice Frankfurter, concurring).

28
Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens, dissenting).

29
Barnhart, supra note 15, at 1922.

30
Id. at 1921.

31
Filippatos, The Doctrine of Stare Decisis and the Protection of Civil Rights and Liberties in the
Rehnquist Court, 11 Boston College Third World Law Journal, 335, 343 (Summer 1991).

32
347 U.S. 483 (1954).

33
163 U.S. 537 (1896).

34
G.R. No. 127882, December 1, 2004, 445 SCRA 1.
35
G.R. No. 139465, October 17, 2000, 343 SCRA 377.

36
Barnhart, supra note 15, at 1915.

37
112 S.Ct. 2791 (1992).

38
Section 5(b).

39
Ibid.

40
Santiago v. Commission on Elections, supra note 11, at 145.

41
85 Record of the House of Representatives 140-142 (February 14, 1989).

42
85 Record of the house of representatives 142-143 (February 14, 1989).

43
Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.

44
I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986).

45
Id. at 400, 402-403.

46
v record, constitutional commission 806 (October 10, 1986).

47
Opposition-in-Intervention filed by ONEVOICE, p. 39.

48
Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30.

49
Introduction to Political Science, pp. 397-398.

50
Section 1, Art. II of the 1987 Constitution.

51
Eighth Edition, p. 89 (2004).

52
Ibid.

53
Id. at 1346.

54
Ibid.

55
Third Edition, p. 67 (1969).

56
Id. at 68.

57
Id. at 1115.

58
Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46.
59
Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive Secretary, No. L-
361432, March 31, 1973, 50 SCRA 30, 367-368.

60
J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973).

61
E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 (1984).

62
N. Gonzales, Philippine Political Law 30 (1969 ed.).

63
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317,
337 quotingCommonwealth v. Ralph, 111 Pa. 365, 3 Alt. 220 (1886).

64
L-36142, March 31, 1973, 50 SCRA 30, 367.

65
i record, constitutional commission 373 (July 8, 1986).

66
The opinion was actually made by Justice Felix Antonio.

67
Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board of Trustees, 37 S.E.2d
322, 327 (1946).

68
T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8th ed. 1927).

69
H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2nd ed. 1897).

70
V. Sinco, supra note 58.

71
Ibid.

72
No. L-1232, 79 Phil. 819, 826 (1948).

73
IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986).

74
Id. at 752.

75
Id. at 769.

76
Id. at 767-769.

77
Id. at 377.

78
Id. at 395.

79
Sinco, supra note 58, at 22.

80
Id. at 20-21.

81
Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA 727.

82
G. Wood, The Creation of the American Republic, 530.
83
Sinco, supra note 58, at 29.

84
State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal App 2d 109 (1946).

85
Town of Whitehall v. Preece, 1998 MT 53 (1998).

86
G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur. 2d, p. 653.

87
Memorandum for petitioner Aumentado, pp. 151-152.

88
Id. at 153-154.

89
L-44640, October 12, 1976, 73 SCRA 333, 360-361.

90
Section 2, Article XVII, 1987 Constitution.

91
Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC., et al.

92
Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer, Annex "B," Memorandum of
Oppositor-Intervenor Pimentel, et al.; Certification dated April 20, 2006 issued by Atty. Marlon S.
Casquejo, Annex "C," Memorandum of Oppositor-Intervenor Pimentel, et al.; Certification dated April
26, 2006 issued by Atty. Marlon S. Cascuejo, Annex "D," Memorandum of Oppositor-Intervenor
Pimentel, et al.

93
Annex "1," Memorandum of Oppositor-Intevenor Antonino.

94
Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito Estrada, et al.

95
Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law Groups, Inc.

96
Annexes 30-31, Id.

97
Annexes 44-64, Id.

98
Consolidated Reply of Petitioner Aumentado, p. 54.

99
Exhibit "E," Memorandum of Petitioner Lambino.

100
Annex "A," Consolidated Response of Petitioner Aumentado.

101
Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13.

102
Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).

103
BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).

104
ASSOCIATE JUSTICE CARPIO:

How many copies of the petition, that you mention(ed), did you print?
ATTY. LAMBINO:

We printed 100 thousand of this petition last February and we

distributed to the different organizations that were volunteering to support us.

ASSOCIATE JUSTICE CARPIO:

So, you are sure that you personally can say to us that 100 thousand of

these were printed?

ATTY. LAMBINO:

It could be more than that, Your Honor.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

But you asked your friends or your associates to re-print, if they can(?)

ATTY. LAMBINO:

Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

Okay, so you got 6.3 Million signatures, but you only printed 100

thousand. So you're saying, how many did your friends print of the petition?

ATTY. LAMBINO:

I can no longer give a specific answer to that, Your Honor. I relied

only to the assurances of the people who are volunteering that they are going to

reproduce the signature sheets as well as the draft petition that we have given them, Your
Honor.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

Did you also show this amended petition to the people?

ATTY. LAMBINO:
Your Honor, the amended petition reflects the copy of the original

petition that we circulated, because in the original petition that we filed before the
COMELEC, we omitted a certain paragraph that is, Section 4 paragraph 3 which were part of
the original petition that we circulated and so we have to correct that oversight because that
is what we have circulated to the people and we have to correct that…

ASSOCIATE JUSTICE CARPIO:

But you just stated now that what you circulated was the petition of

August 25, now you are changing your mind, you're saying what you circulated was the
petition of August 30, is that correct?

ATTY. LAMBINO:

In effect, yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

So, you circulated the petition of August 30, but what you filed in the

COMELEC on August 25 was a different petition, that's why you have to amend it?

ATTY. LAMBINO:

We have to amend it, because there was an oversight, Your Honor, that

we have omitted one very important paragraph in Section 4 of our proposition.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

Okay, let's be clear. What did you circulate when you gathered the

signatures, the August 25 which you said you circulated or the August 30?

ATTY. LAMBINO:

Both the August 25 petition that included all the provisions, Your

Honor, and as amended on August 30. Because we have to include the one that

we have inadvertently omitted in the August 25 petition, Your Honor.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:


And (you cannot tell that) you can only say for certain that you printed

100 thousand copies?

ATTY. LAMBINO:

That was the original printed matter that we have circulated by the

month of February, Your Honor, until some parts of March, Your Honor.

ASSOCIATE JUSTICE CARPIO:

That is all you can assure us?

ATTY. LAMBINO:

That is all I can assure you, Your Honor, except that I have asked some

friends, like for example (like) Mr. Liberato Laos to help me print out some more of this
petition… (TSN, September 26, 2006, pp. 7-17)

105
Section 2 (1), Article IX – C, 1987 Constitution.

106
Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr., Florenz D. Regalado, Flerida
Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo
P. Torres.

107
Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and
Artemio V. Panganiban.

108
Justice Jose C. Vitug.

109
Only fourteen (14) justices participated in the deliberations as Justice Teodoro R. Padilla took no
part on account of his relationship with the lawyer of one of the parties.

110
Citing conscience as ground.

111
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

112
Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas Writers' Project, Inc. v.
Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d (1987); France v. Nelson, 292 Ark. 219, 729 S.W.
2d 161 (1987).

113
40 P. 3d 886 (2006).

114
781 P. 2d 973 (Alaska, 1989).

115
Id. at 982-84 (Compton, J., concurring).

116
Id. at 975-78.
117
Negri v. Slotkin, 244 N.W. 2d 98 (1976).

118
112 Fla. 734, 151 So. 284 (1933).

119
Penned by Justice Whitfield, and concurred in by Chief Justice Davis and Justice Terrell; Justices
Ellis, Brown and Buford are of the opinion that chapter 15938, Acts of 1933, is a special or local law
not duly advertised before its passage, as required by sections 20 and 21 of article 3 of the state
Constitution, and therefore invalid. This evenly divided vote resulted in the affirmance of the validity
of the statute but did not constitute a binding precedent on the Court.

120
62 S. Ct. 552 (1942).

121
329 F. 2d 541 (1964).

122
239 F. 2d 532 (9th Cir. 1956).

123
Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).

124
331 N.E. 2d 65 (1975).

125
Neil v. Biggers, supra note 108.

126
Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas. 274.

127
Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA 808, 811, 812;
Development Bank of the Philippines v. Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA
118.

128
No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong, No. L-29689, April 14,
1978, 82 SCRA 337.

129
Supra note 1.

QUISUMBING, J.:

1
Political questions have been defined as "Questions of which the courts of justice will refuse to take
cognizance, or to decide, on account of their purely political character, or because their
determination would involve an encroachment upon the executive or legislative powers; e.g., what
sort of government exists in a state…." Black's Law Dictionary, p. 1319 citing Kenneth v. Chambers,
14 How. 38, 14 L.Ed. 316.

2
See 1987 Const., Art. XVII, Sec. 2.

3
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

4
G.R. No. 129754, September 23, 1997.

CORONA, J.:

1
Abrams v. United States, 250 U.S. 616.
2
336 Phil. 848 (1997).

3
Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA 1.

4
Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.

5
Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380, citing State ex rel. Stenberg v.
Beermann, 240 Neb. 754, 485 N.W. 2d 151 (1992).

6
Id. citing Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236, 47 Ill. Dec. 363,
415 N.E. 2d 368 (1980).

7
Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation of Direct Legislation, The
California Roundtable 13 (1981). The American Founding Fathers recognized that direct democracy
posed a profound threat to individual rights and liberty. The U.S. Constitution was "designed to
provide a system of government that would prevent either a tyranny of the majority or a tyranny of
the few." James Madison "warned against the power of a majority or a minority of the population
'united and actuated by some common impulse of passion, or of interest, adverse to the rights of
other citizens, or to the permanent and aggregate interest of the community.'

8
Gilbert Hahn & Steven C. Morton, Initiative and Referendum – Do They Encourage or Impair Better
State Government? 5 FLA. ST. U. L. REV. 925, 927 (1977).

9
Florida Advisory Council on Intergovernmental Relations, Initiatives and Referenda: Issues in
Citizen Lawmaking (1986).

10
Sec. 1, Article II, Constitution.

11
In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145 (Okla. 1995).

TINGA, J.:

1
G.R. No. 127325, 19 March 1997, 270 SCRA 106.

2
G.R. No. 129754, 23 September 1997.

3
Petitioner Aumentado aptly refers to the comment of the late Senator Raul Roco that
the Santiago ruling "created a third specie of invalid laws, a mongrel type of constitutional but
inadequate and, therefore, invalid law." Memorandum for Aumentado, p. 54.

4
See Civil Code, Art. 9.

5
456 Phil. 1 (2003).

6
Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines 43 (1990) and Justice Benjamin
N. Cardozo, The Nature of the Judicial Process 113 (1921).

7
See Dissenting Opinion, Manila International Airport Authority v. City of Parañaque, G.R. No.
155650, 20 July 2006. In my ponencia in Globe Telecom v. NTC, G.R. No. 143964, 26 July 2004,
435 SCRA 110, I further observed that while an administrative agency was not enslaved to obey its
own precedent, it was "essential, for the sake of clarity and intellectual honesty, that if an
administrative agency decides inconsistently with previous action, that it explain thoroughly why a
different result is warranted, or if need be, why the previous standards should no longer apply or
should be overturned." Id., at 144. Happily, Justice Puno's present opinion expressly elucidates
why Santiago should be reversed.

8
As Justice Frankfurter once wrote: "We recognize that stare decisis embodies an important social
policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy
reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of
adherence to the latest decision, however recent and questionable, when such adherence involves
collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by
experience… This Court, unlike the House of Lords, has from the beginning rejected a doctrine of
disability at self-correction." Helvering v. Hallock, 309 U.S. 106, 119-121 (1940).

9
351 Phil. 692 (1998).

10
As Chief Justice Panganiban then cited: "For instance, Ebralinag vs. Davision Superintendent of
Schools of Cebu, 219 SCRA 256, March 1, 1993, reversed the Court's 34-year-old doctrine laid
down in Gerona vs. Secretary of Education, 106 Phil 2, August 12, 1959, and upheld the right of
Jehovah's Witnesses "to refuse to salute the Philippine flag on account of their religious beliefs."
Similarly, Olaguer vs. Military Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-year-
old ruling in Aquino Jr. vs. Military Commission, 63 SCRA 546, May 9, 1975, which recognized the
jurisdiction of military tribunals to try civilians for offenses allegedly committed during martial law.
The Court likewise reversed itself in EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated
its earlier ruling in National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the
validity of certain presidential decrees regarding the determination of just compensation. In the much
earlier case of Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the Court revoked its
holding in Involuntary Insolvency of Mariano Velasco & Co., 55 Phil 353, November 29, 1930,
regarding the relation of the insolvency law with the then Code of Civil Procedure and with the Civil
Code. Just recently, the Court, in Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also
abandoned the earlier grant of standing to petitioner-organization in Kilosbayan vs. Guingona, 232
SCRA 110, May 5, 1994." Id., at 780.

11
Ibid.

12
129 Phil. 507, 516 (1967).

13
G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75.

14
G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.

15
Ibid.

16
G.R. No. 155855, 26 January 2004, 421 SCRA 92.

17
Id., at 104. Relatedly, the Court held that "[c] ontests which do not involve the election, returns and
qualifications of elected officials are not subjected to the exercise of the judicial or quasi-judicial
powers of courts or administrative agencies". Ibid.

18
See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel, Jr., et. al., pp. 19-22;
Memorandum for Intervenor Senate of the Philippines, pp. 34-35.
19
See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987 Const, Art. VIII.

20
See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v. Hon. Jose Cabatuando, et
al., 116 Phil. 736, 741 (1962).

21
See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-215; citing Public Service
Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See also Fariñas v. Executive Secretary, G.R.
Nos. 147387 & 152161, 10 December 2003, 417 SCRA 503, 519.

22
"As a policy, this Court has adopted a liberal construction of the one title - one subject rule." Tatad
v. Secretary of Department of Energy, 346 Phil. 321, 359 (1997).

23
Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815; 22 February 1991, 194
SCRA 317.

24
Id. at 337. I have previously expressed my own doubts in relying on the constitutional or legislative
deliberations as a definitive source of construction. "It is easy to selectively cite passages,
sometimes out of their proper context, in order to assert a misleading interpretation. The effect can
be dangerous. Minority or solitary views, anecdotal ruminations, or even the occasional crude
witticisms, may improperly acquire the mantle of legislative intent by the sole virtue of their
publication in the authoritative congressional record. Hence, resort to legislative deliberations is
allowable when the statute is crafted in such a manner as to leave room for doubt on the real intent
of the legislature." Southern Cross Cement Corporation v. Phil. Cement Manufacturers, G.R. No.
G.R. No. 158540, 8 July 2004, 434 SCRA 65, 95.

25
77 Phil. 192 (1946).

26
Id. at 215.

27
Civil Liberties Union v. Executive Secretary, supra note 23, at 338; citing Household Finance
Corporation v. Shaffner, 203 S.W. 2d 734, 356 Mo. 808.

28
See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.

29
G.R. No. 151944, January 20, 2004, 420 SCRA 365.

30
Id., at 377. Emphasis supplied.

31
See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.

32
From the "Funeral Oration" by Pericles, as recorded by Thucydides in the History of the
Peloponnesian War.

33
H. Zinn, A People's History of the United States (1980 ed.), at 95.

CHICO-NAZARIO, J.:

1
The full text of the Preamble reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just
and humane society and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure to
ourselves and our posterity the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.

2
Article XVII, Constitution.

3
G.R. No. 127325, 19 March 1997, 270 SCRA 106.

4
Id. at 157.

5
Id. at 124.

6
Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; See also the more
recent cases of Republic v. Nolasco, G.R. No. 155108, 27 April 2005, 457 SCRA 400; and PH Credit
Corporation v. Court of Appeals, 421 Phil. 821 (2001).

7
Supra note 2 at 124.

8
G.R. No. 129754.

9
Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the Resolution, dated 23
September 1997, in G.R. No. 129754, PIRMA v. COMELEC, pp. 2-3.

10
Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).

11
Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997.

12
Santiago v. Comelec, supra note 2 at 170-171.

13
Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.

VELASCO, JR., J.:

1
G.R. No. 127535, March 19, 1997, 270 SCRA 106.

2
Id.

3
Commission on Audit of the Province of Cebu v. Province of Cebu, G.R. No. 141386, November
29, 2001, 371 SCRA 196, 202.

4
United Harbor Pilots' Association of the Philippines, Inc. v. Association of International Shipping
Lines, Inc., G.R. No. 133763, November 13, 2002, 391 SCRA 522, 533.

5
PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G. R. No. 109648, November
22, 2001, 370 SCRA 155, 166-167.

6
Id.
7
Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479 SCRA 522, 529.

8
G.R. No. 129754, September 23, 1997.

9
V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,


vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA,
and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the
1971 Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines
to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution
No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by
declaring said resolutions to be without the force and effect of law in so far as they direct the holding
of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count
required that copies thereof be served on the Solicitor General and the Constitutional Convention,
through its President, for such action as they may deem proper to take. In due time, respondent
COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and
considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this
nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for
the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of
the Convention be made respondents. After the petition was so amended, the first appeared thru
Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents,
thru counsel, resist petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and protected. At any rate, notwithstanding
that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been
denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being
by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a convention to propose amendments to
the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16,
1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under
and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose amendments to the


Constitution of the Philippines, to be composed of two elective Delegates from each
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and


considered part of the Constitution when approved by a majority of the votes cast in
an election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural
session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and
other preparatory works over, as its first formal proposal to amend the Constitution, its session which
began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28,
1971, the Convention approved Organic Resolution No. 1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE


CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO
18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:

Section 1. Section One of Article V of the Constitution of the Philippines is amended


to as follows:

Section 1. Suffrage may be exercised by (male) citizens of the


Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.

Section 2. This amendment shall be valid as part of the Constitution of the


Philippines when approved by a majority of the votes cast in a plebiscite to coincide
with the local elections in November 1971.

Section 3. This partial amendment, which refers only to the age qualification for the
exercise of suffrage shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the
amended Section or on other portions of the entire Constitution.

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from
its savings or from its unexpended funds for the expense of the advanced plebiscite;
provided, however that should there be no savings or unexpended sums, the
Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent
Comelec "to help the Convention implement (the above) resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as
the Constitutional Convention Act of 1971, may we call upon you to help the
Convention implement this resolution:

Sincerely,

(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P.
MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will
hold the plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of separate official
ballots, election returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the
printing and shipment of said ballots and election forms; and

(c) Said official ballots and election forms will be delivered to the Commission in time
so that they could be distributed at the same time that the Commission will distribute
its official and sample ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of
the genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee
to implement the Resolution.

This Committee issued implementing guidelines which were approved by the


President who then transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies
of the order, resolution and letters of transmittal above referred to (Copy of the report
is hereto attached as Annex 8-Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a
recess of the Convention from November 1, 1971 to November 9, 1971 to permit the
delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are hereto attached as Annexes 9 and
9-A Memorandum, respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24 submitted by


Delegate Jose Ozamiz confirming the authority of the President of the Convention to
implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee
ratifying all acts performed in connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and effect
as laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight
senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is,
by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and
all of the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the details
of the plebiscite for the ratification of any amendment the Convention may deem proper to propose
is within the authority of the Convention as a necessary consequence and part of its power to
propose amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor
of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that
the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact
of the portions of Our decision they have quoted or would misapply them by taking them out of
context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court —
speaking through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution — which was being submitted to the people for ratification —
satisfied the three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada v.
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-
18684, Sept. 14, 1961). In the first we held that the officers and employees of the
Senate Electoral Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on behalf of the party having the
second largest number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of Congress purporting to apportion the
representatives districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the determination of
which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is


not included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people — as
the repository sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) — to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1, Art. XV, Constitution of
the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when
performing the same function, (Of amending the Constitution) for their authority
does not emanate from the Constitution — they are the very source of all powers of
government including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the Constitution,


the members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within
or beyond constitutional limits. Otherwise, they could brush aside and set the same
at naught, contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent


assembly — violates the Constitution is essentially justiciable not political, and,
hence, subject to judicial review, and, to the extent that this view may be inconsistent
with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence
and derives all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly
by authority of Section 1, Article XV of the present Constitution which provides:

ARTICLE XV — AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of


all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for the
purpose. Such amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments are submitted
to the people for their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass of such
powers can be co-extensive only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are duly ratified by the
people, it necessarily follows that the acts of convention, its officers and members are not immune
from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety
and in everyone of its parts the existence of the Convention notwithstanding, and operates even
within the walls of that assembly. While it is indubitable that in its internal operation and the
performance of its task to propose amendments to the Constitution it is not subject to any degree of
restraint or control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws
or the freedom of speech and of the press in disregard of the Bill of Rights of the existing
Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the
taking of private property without just compensation or for the imposition or exacting of any tax,
impost or assessment, or declare war or call the Congress to a special session, suspend the
privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in violation of the distribution of powers
in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an act
of the Convention be assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a contention is correct or not? It
is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve
such a grave constitutional question must be lodged on some authority, or we would have to confess
that the integrated system of government established by our founding fathers contains a wide
vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and
craftsmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel
in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say where the one
leaves off and the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.

As any human production our Constitution is of course lacking perfection and


perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of check and balances
and subject to specific limitations and restrictions provided in the said instrument.
The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment and the principles of good government mere political
apothegms. Certainly the limitations and restrictions embodied in our Constitution are
real as they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one
and half centuries. In our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of our Constitution.

The Constitution is a definition of the powers or government. Who is to determine the


nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to strike
conclusions unrelated to actualities. Narrowed as its functions is in this manner the
judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes must
be ever ready to mark, their voices to pronounce ... aggression on the authority of
their Constitution." In the last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.

In the case at bar, the National Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the other
hand, the Electoral Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against the election, returns
and qualifications of members of the National Assembly; notwithstanding the
previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of
cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted
after December 3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as contended by
the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of members of
the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave


constitutional nature between the National Assembly on the one hand and the
Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission as we shall have occasion to refer hereafter, is a constitutional organ,
created for a specific purpose, namely, to determine all contests relating to the
election, returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition, courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
Chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the
Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason, and
authority, we are clearly of the opinion that upon the admitted facts of the present
case, this court has jurisdiction over the Electoral Commission and the subject matter
of the present controversy for the purpose of determining the character, scope and
extent of the constitutional grant to the Electoral Commission as "the sole judge of all
contests relating to the election, returns and qualifications of the members of the
National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing regular
departments of the government but to all such conflicts between and among these departments, or,
between any of them, on the one hand, and any other constitutionally created independent body, like
the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by the
House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has
been convincingly shown to Us by any of the respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is an assembly of delegate elected directly by
the people, since at best, as already demonstrated, it has been convened by authority of and under
the terms of the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both the
Convention and the Court are subject to the Constitution and the rule of law, and "upon principle,
reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn duty of the
Court, under the existing Constitution to resolve the issues in which petitioner, respondents and
intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of
the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the exercise of
suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic
Resolution No. 1 in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?

At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed
amendment here involved be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well
as in the subject question implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is
not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms
or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution
No. 1 itself expressly provides, that the amendment therein proposed "shall be without prejudice to
other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution." In other words,
nothing that the Court may say or do, in this case should be understood as reflecting, in any degree
or means the individual or collective stand of the members of the Court on the fundamental issue of
whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not
before Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment
may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity
and purity of purpose cannot permit any other line of conduct or approach in respect of the problem
before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those concerning the preservation
and protection of our natural resources and the national patrimony, as an alternative to violent and
chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which
at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion
and disorder, anarchy and violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the Court the sacred duty to
give meaning and vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in
all other cases, We are resolved to discharge that duty.

During these twice when most anyone feels very strongly the urgent need for constitutional reforms,
to the point of being convinced that meaningful change is the only alternative to a violent revolution,
this Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the
existing Constitution in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present condition of
things, as they see it, can limit the extent of the constitutional innovations the Convention may
propose, hence the complete substitution of the existing constitution is not beyond the ambit of the
Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in which it should discharge its constitutional duty
in such premises. The issues raised by petitioner, even those among them in which respondents and
intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in the manner and form it
may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down
by the Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a
very familiar principle of constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands almost in a unique footing in that
regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or inhibitions
save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature
and the scope and extent of the amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of
a consensus among the members of the Court in respect to this issue creates the need for more
study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from
making any pronouncement or expressing Our views on this question until a more appropriate case
comes to Us. After all, the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of
Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it
is the condition and limitation that all the amendments to be proposed by the same Convention must
be submitted to the people in a single "election" or plebiscite. It being indisputable that the
amendment now proposed to be submitted to a plebiscite is only the first amendment the
Convention propose We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null
and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as to the number of amendments
that Congress or the Convention may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their ratification,"
thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same constituent assembly of Congress or convention,
and the provision unequivocably says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking
as constitution making itself. Indeed, any amendment of the Constitution is as important as the
whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is
to be viable as the framework of the government it establishes, on the one hand, and adequately
formidable and reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the
other. lt is inconceivable how a constitution worthy of any country or people can have any part which
is out of tune with its other parts..

A constitution is the work of the people thru its drafters assembled by them for the purpose. Once
the original constitution is approved, the part that the people play in its amendment becomes harder,
for when a whole constitution is submitted to them, more or less they can assumed its harmony as
an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves from a study of the whole
document the merits and demerits of all or any of its parts and of the document as a whole. And so
also, when an amendment is submitted to them that is to form part of the existing constitution, in like
fashion they can study with deliberation the proposed amendment in relation to the whole existing
constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact that
under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided
the voter, as to what finally will be concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to be able to enjoy the right of
suffrage, there are other considerations which make it impossible to vote intelligently on the
proposed amendment, although it may already be observed that under Section 3, if a voter would
favor the reduction of the voting age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there any possible indication
whether they will ever be or not, because Congress has reserved those for future action, what kind
of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on the verge of introducing substantial changes,
if not radical ones, in almost every part and aspect of the existing social and political order enshrined
in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the
effect of the reduction of the voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a harmonious whole. In the context of the present
state of things, where the Convention has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to present to the people any single
proposal or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can base their judgment on. We
reject the rationalization that the present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of the proposed amendment is
to enable the eighteen year olds to take part in the election for the ratification of the Constitution to
be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language
of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow
these eighteen years old to vote. But like the Convention, the Court has its own duties to the people
under the Constitution which is to decide in appropriate cases with appropriate parties Whether or
not the mandates of the fundamental law are being complied with. In the best light God has given
Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate
the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the
ratification of all the amendments the Convention may propose. We are not denying any right of the
people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of
the Constitution, the same should be submitted to them not separately from but together with all the
other amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null
and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in compliance with the said
organic resolution. In view of the peculiar circumstances of this case, the Court declares this
decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

Separate Opinions

MAKALINTAL, J., reserves his vote —

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submissionof title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on


Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2 expounded his view,
with which we essentially agree, on the minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional amendment. This is what he said:

... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be understood as saying that, if one citizen
or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What
the Constitution in effect directs is that the government, in submitting an amendment
for ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent consent or rejection."
.

The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such
amendment should be submitted and ratified by just "a majority of the votes cast at
an election at which the amendments are submitted to the people for their
ratification", if the concentration of the people's attention thereon is to be diverted by
other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon an election
wherein the people could devote undivided attention to the subject. 4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .

The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal. 1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a
convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is
denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the
superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is
an alter ego of the people. It is to be admitted that there are some American state decisions, the most
notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that
the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as
it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence,
subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
— that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions." 4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate
discharge of its functions. 6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.

Separate Opinions

MAKALINTAL, J., reserves his vote —

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submissionof title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on


Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2 expounded his view,
with which we essentially agree, on the minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional amendment. This is what he said:

... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be understood as saying that, if one citizen
or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What
the Constitution in effect directs is that the government, in submitting an amendment
for ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent consent or rejection."
.

The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such
amendment should be submitted and ratified by just "a majority of the votes cast at
an election at which the amendments are submitted to the people for their
ratification", if the concentration of the people's attention thereon is to be diverted by
other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon an election
wherein the people could devote undivided attention to the subject. 4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .

The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal. 1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a
convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is
denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the
superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is
an alter ego of the people. It is to be admitted that there are some American state decisions, the most
notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that
the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as
it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence,
subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
— that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions." 4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate
discharge of its functions. 6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.

Footnotes

1 Under Section 36, Rule 138 as amended, no one may appear as amicus curiae
unless invited or allowed, by the Court.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817.

2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817.

3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. Dizon, Calixto O.


Zaldivar, Fred Ruiz Castro and Eugenio Angeles.

4 21 SCRA 821.

FERNANDO, J., concurring and dissenting:

1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in


Constitutional Law, pp. 1, 4-5 (1936). It was therein stated: "In a governmental and
proper sense, law is the highest act of a people's sovereignty while their government
and Constitution remain unchanged. It is the supreme will of the people expressed in
the forms and by the authority of their Constitution. It is their own appointed mode
through which they govern themselves, and by which they bind themselves. So long
as their frame of government is unchanged in its grant of all legislative power, these
laws are supreme over all subjects unforbidden by the instrument itself. The calling of
a convention, and regulating its action by law, is not forbidden in the Constitution. It is
a conceded manner, through which the people may exercise the rights reserved in
the bill of rights. ... The right of the people to restrain their delegates by law cannot
be denied, unless the power to call a convention by law, and the right of self
protection be also denied."
2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all
government authority emanates from them." .

3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the
constitutional convention as a sovereign body, and that characterization perfectly
defines the correct view, in our opinion, of the real nature of that august assembly. It
is the highest legislative body known to freemen in a representative government. It is
supreme in its sphere. It wields the powers of sovereignty, specially delegated to it,
for the purpose and the occasion, by the whole electoral body, for the good of the
whole commonwealth. The sole limitation upon its powers is that no change in the
form of government shall be done or attempted. The spirit of republicanism must
breathe through every part of the framework, but the particular fashioning of the parts
of this framework is confided to the wisdom the faithfulness, and the patriotism of this
great convocation, representing the people in their sovereignty." The Sproule
decision was cited with approval four years later by the Mississippi Supreme Court
anew in Dickson v. State, 20 So. 841. A 1908 decision of the Southern State of
Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the
Sproule dictum.

4 Orfield on The Amending of the Federal Constitution, 45-46 (1942).

5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections


shall have exclusive charge of its enforcement and administration of all laws relative
to the conduct of elections and shall exercise all other functions which may be
conferred upon it by law." Cf. Abcede v. Imperial, 103 Phil. 136 (1958).

6 "According to Sec. 14 of the 1971 Constitutional Convention Act


(1970):"Administration and Technical Assistance. -- All government entities, agencies
and instrumentalities, including the Senate and House of Representatives, shall
place at the disposal of the Convention such personnel premises, and furniture
thereof as can, in their judgment be spared without detriment to public service,
without cost, refund or additional pay."
Republic of the Philippines
SUPREME COURT
Manila

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
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 patrimonyof the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the
nation. 10 It prescribes the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to which all
other laws must conform and in accordance with which all private rights must be determined and all public
authority administered.11 Under the doctrine of constitutional supremacy, if a law or contract violates any
norm of the constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-
executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that —

. . . 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

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. 25Tolentino 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 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 together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etatwhere an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that theFilipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo


amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.

xxx xxx xxx

MR. MONSOD. Madam President, apparently the proponent is


agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual


Filipino. What about a corporation wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we


say that the preference should only be 100-percent Filipino.

MR: DAVIDE. I want to get that meaning clear because "QUALIFIED


FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.

MR. MONSOD. We agree, Madam President. 39

xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment


be read again.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF


RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —


MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND


CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."

MR FOZ. 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 — 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 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
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.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must


refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case — by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing
with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

xxx xxx xxx

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 fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).

MR. MONSOD. We also wanted to add, as


Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

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 the Filipinos
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". (Vol. III, p. 616,


Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . .


It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide


management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:

a. Proven management .expertise in the hotel


industry; or

b. Significant equity ownership (i.e. board


representation) in another hotel company; or

c. Overall management and marketing expertise to


successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide


access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration


Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second


Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The Manila


Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila


Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents


(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with


the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the


evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.

3. The decision of the PBAC with respect to the


results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the


criteria set forth below:

a. Business management expertise,


track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the


proposed strategic plan for the Manila
Hotel

5. The PBAC will shortlist such number of Applicants as it may deem


appropriate.
6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of


Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by


member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to


participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred


Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the


minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM


1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be


submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the


Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of


the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos


(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft


payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable


banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less


than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic


Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned


immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor of


GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement


with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price


not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for


any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the


following location:

New GSIS Headquarters Building


Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding


to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and


"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at


3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will


formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed


period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.

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 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute


with 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. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock


Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management


Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross


revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating


profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international


marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for


the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. 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 are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be


in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

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 contract with


GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and


COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the


Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or


unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all


applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the


prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it


has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,


except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public


Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.

7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx


The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the


controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.


The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8

Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring
future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily
ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but congressional in action should not suffocate
them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection
of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation. 18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II
of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as
mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on
"Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts,
Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed
to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy
content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles


and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo, 31the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion 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 over aliens?

MR. NOLLEDO. Madam President, I think that is


understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO


QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the


intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must


refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case — by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing
with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

xxx xxx xxx

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 fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).

MR. MONSOD. We also wanted to add, as


Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

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 the Filipinos
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". (Vol. III, p. 616,


Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . .


It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:


This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide


management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or

b. Significant equity ownership (i.e. board


representation) in another hotel company; or

c. Overall management and marketing expertise to


successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide


access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration


Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second


Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The Manila


Hotel Corporation

c. Letter of Invitation. to the Prequalification and


Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila


Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS


The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with


the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the


evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.

3. The decision of the PBAC with respect to the


results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the


criteria set forth below:

a. Business management expertise,


track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the


proposed strategic plan for the Manila
Hotel

5. The PBAC will shortlist such number of Applicants as it may deem


appropriate.

6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of


Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by


member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING


A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to


participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred


Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the


minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy


of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be


submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).


If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of


the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos


(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft


payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable


banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less


than the required amount.

c. If the Bid Security is in the form of a manager's check or


unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic


Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned


immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement


with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price


not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for


any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the


following location:

New GSIS Headquarters Building


Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding


to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents


in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and


"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at


3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will


formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed


period; or

b. There is only one (1) bid that is submitted and


acceptable to the PBAC.

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 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute


with 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. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management


Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross


revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating


profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international


marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for


the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The


Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. 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 are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be


in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

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 contract with


GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and


COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the


Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or


unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all


applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the


prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it


has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,


except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public


Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the


controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.


The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8

Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring
future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily
ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but congressional in action should not suffocate
them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection
of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation. 18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II
of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as
mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on
"Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts,
Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed
to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy
content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles


and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo, 31the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion 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 over aliens?

MR. NOLLEDO. Madam President, I think that is


understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO


QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the


intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Footnotes

1 See Sec. 10, par. 2, Art. XII, 1987 Constitution

2 Par I. Introduction and Highlights; Guidelines and Procedures: Second


Prequailifications and Public Bidding of the MHC Privatization; Annex "A,"
Consolidated Reply to Comments of Respondents; Rollo, p. 142.

3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.

4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.

5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining
Order; id., p. 15.

6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-
6; id., pp. 6-7.

7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.

8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A,"
Consolidated Reply to Comments of Respondents; id., p. 154.

9 Respondents' Joint Comment with Urgent Motion to Lift Temporary Restraining


Order, p. 9; Rollo, p. 44.

10 Marbury v. Madison, 5, U.S. 138 (1803).

11 Am Jur. 606.

12 16 Am Jur. 2d 281.

13 Id., p. 282.

14 See Note 12.

15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.

16 Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.

17 16 Am Jur 2d 283-284.

18 Sec. 10, first par., reads: The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.

Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals
and priorities.

19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d 319.

20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.

21 Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he
State values the dignity of every human person and guarantees full respect for
human rights.

22 Sec. 12, Art. II, provides that [t]he 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.

23 Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.

24 Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress
shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political
power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.

Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and self-
reliance.

25 Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;

(2) Establish and maintain a system of free public education in the elementary and
high school levels. Without limiting the natural right of parents to rear their children,
elementary education is compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged.

(4) Encourage non-formal, informal, and indegenous learning, independent, and out-
of-school study programs particularly those that respond to community needs; and

(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.

26 G.R. 115455, 25 August 1994, 235 SCRA 630.

27 See Note 25.

28 Sec. 1 Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps
to make such education accessible to all.

29 G.R. No. 118910, 17 July 1995.

30 Sec. 5 Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.

31 See Note 23.

32 See Note 24.

33 Sec. 17, Art II, provides that [t]he State shall give priority to education, science
and technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and development.

34 Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p.
72.

35 Webster's Third New International Dictionary, 1986 ed., p. 1656.

36 The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President
Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President
Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President
Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm
Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia,
Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan
Hassanal Bolkiah of Brunei, President Ramaswani Venkataraman of India, Prime
Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile,
Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi
Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim President Young Sam of Korea, Princess Infanta Elena of Spain,
President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia,
King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see
Memorandum for Petitioner, pp. 16-19.

37 Authored by Beth Day Romulo.

38 See Note 9, pp. 15-16; Rollo, pp. 50-51.

39 Record of the Constitutional Commission. Vol. 3, 22 August 1986. p. 607.

40 Id., p. 612.

41 Id., p. 616.

42 Id., p. 606.

43 Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.
930-931.

44 Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.

45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.

46 Id., pp. 3-4.

47 See Note 8.

48 Keynote Address at the ASEAN Regional Symposium of Enforcement of Industrial


Property Rights held 23 October 1995 at New World Hotel, Makati City.

49 Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers


and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.

50 Memorandum of Authorities submitted by former Chief Justice Enrique M.


Fernando, p. 5.

51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.

PADILLA, J., concurring:


1 Article XII, Section 10, par. 2, 1987 Constitution.

2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.

3 Sinco, Philippine Political Law, 11th ed, p. 112.

4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.

5 Memorandum for Petitioner, p. 1.

6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.


507.

7 Id., p. 562.

VITUG, J., concurring:

1 Second par. Section 10, Art. XII, 1987 Constitution.

MENDOZA, J., concurring:

1 Art. XII, §10, second paragraph.

2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND


PUBLIC BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..

3 Id.

4 83 Phil. 242 (1949).

5 R.A. No. 37, §1.

6 87 Phil. 343 (1950).

7 104 Phil. 302 (1958).

8 Id, at 309.

9 For an excellent analysis of American cases on reverse discrimination in these


areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).

10 Art. II, §19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)

11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).
12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:

a. Business management expertise, tract record, and experience

b. Financial capability

c. Feasibility and acceptability of the proposed strategic plan for the


Manila Hotel.

13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.

14 Id., Part V, par. V (1).

PUNO, J., dissenting:

1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification


and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents,Rollo, p. 142.

2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.

3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140-
155.

4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.

5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].

6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].

7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].

8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.

9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].

10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.


11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann.
Cas. 1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of
Supervisors, 67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..

12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.

13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.

14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.

15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.

16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24


SCRA 663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.

17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v.


Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth
Decennial Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.

18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill.
App. 2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City
of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].

19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].

20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).

21 Article XIII, Section 13 (Basco, supra).

22 Article XIV, Section 2 (Basco, supra).

23 Kilosbayan v. Morato, supra, at 564.

24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.


25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.

26 Or such higher percentage as Congress may prescribe.

27 Article XIV, section 3 of the 1973 Constitution reads:

"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National


Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"

28 101 Phil. 1155 [1957].

29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichongcase upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.

30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).

31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee


celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any

32 Section 7 of R.A. 4846 provides:

Sec. 7. In the designation of a particular cultural property as a .national cultural


treasure," the following procedure shall be observed:

(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty
days and subsequently again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education with two experts as
members appointed by the Secretary of Education. Their decision shall final and
binding.
(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.

xxx xxx xxx

33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.

34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];


Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].

35 Id., secs. 28 and 29.

36 Id., Sec. 30.

37 Constitution, Article IX (B), section 2 (1).

38 Constitution, Article IX (D), section 2 (1).

39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . . in
activities which significantly contribute to national industrialization and socio-
economic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.
U.S. Supreme Court
Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)
Marbury v. Madison

5 U.S. (1 Cranch) 137

Syllabus

The clerks of the Department of State of the United States may be called upon to give evidence of
transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a confidential
nature which may have occurred in his Department. But he may be called upon to give testimony of
circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to questions upon
confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not removable at
his will, must cease. That point of time must be when the constitutional power of appointment has
been exercised. And the power has been exercised when the last act required from the person
possessing the power has been performed. This last act is the signature of the commission.

If the act of livery be necessary to give validity to the commission of an officer, it has been delivered
when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and
transmitted to the party.

In cases of commissions to public officers, the law orders the Secretary of State to record them.
When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether
inserted inserted into the book or not, they are recorded.

When the heads of the departments of the Government are the political or confidential officers of the
Executive, merely to execute the will of the President, or rather to act in cases in which the Executive
possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts
are only politically examinable. But where a specific duty is assigned by law, and individual rights
depend upon the performance of that duty, it seems equally clear that the individual who considers
himself injured has a right to resort to the laws of his country for a remedy.

The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the
peace for the County of Washington, in the District of Columbia, and the seal of the United States,
affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of
the completion of the appointment; and the appointment conferred on him a legal right to the office
for the space of five years. Having this legal right to the office, he has a consequent right to the
commission, a refusal to deliver which is a plain violation of that right for which the laws of the
country afford him a remedy.

To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on
legal principles, such writ must be directed, and the person applying for it must be without any other
specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is withheld from
the person entitled to it, an action of detinue for the commission against the Secretary of State who
refuses to deliver it is not the proper remedy, as the judgment in detinue is for the thing itself, or its
value. The value of a public office, not to be sold, is incapable of being ascertained. It is a plain case
for a mandamus, either to deliver the commission or a copy of it from the record.

To enable the Court to issue a mandamus to compel the delivery of the commission of a public office
by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction, or that it be
necessary to enable them to exercise appellate jurisdiction.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a
cause already instituted, and does not create the cause.

The authority given to the Supreme Court by the act establishing the judicial system of the United
States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule
to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each
other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the
legislature, the Constitution, and not such ordinary act, must govern the case to which they both
apply.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William
Harper, by their counsel, chan roblesv irtualawlib ra ry

Page 5 U. S. 138

severally moved the court for a rule to James Madison, Secretary of State of the United States, to
show cause why a mandamus should not issue commanding him to cause to be delivered to them
respectively their several commissions as justices of the peace in the District of Columbia. This motion
was supported by affidavits of the following facts: that notice of this motion had been given to Mr.
Madison; that Mr. Adams, the late President of the United States, nominated the applicants to the
Senate for their advice and consent to be appointed justices of the peace of the District of Columbia;
that the Senate advised and consented to the appointments; that commissions in due form were
signed by the said President appointing them justices, &c., and that the seal of the United States was
in due form affixed to the said commissions by the Secretary of State; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has not complied with that
request; and that their said commissions are withheld from them; that the applicants have made
application to Mr. Madison as Secretary of State of the United States at his office, for information
whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory
information has not been given in answer to that inquiry, either by the Secretary of State or any
officer in the Department of State; that application has been made to the secretary of the Senate for a
certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has
declined giving such a certificate; whereupon a rule was made to show cause on the fourth day of this
term. This rule having been duly served, chan rob lesvi rtua lawlib rary

Page 5 U. S. 139

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and were
required to give evidence, objected to be sworn, alleging that they were clerks in the Department of
State, and not bound to disclose any facts relating to the business or transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them
that, when the questions were asked, they might state their objections to answering each particular
question, if they had any.

Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the
affidavits occurred, was called upon to give testimony. He objected to answering. The questions were
put in writing.

The court said there was nothing confidential required to be disclosed. If there had been, he was not
obliged to answer it, and if he thought anything was communicated to him confidentially, he was not
bound to disclose, nor was he obliged to state anything which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can award
the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any case whatever.
3. Whether, in the present case, the Court may award a mandamus to James Madison, Secretary of
State. chanrob lesvi rtua lawlib rary

Page 5 U. S. 153

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case
requiring the Secretary of State to show cause why a mandamus chan roble svi rtualaw lib rary

Page 5 U. S. 154

should not issue directing him to deliver to William Marbury his commission as a justice of the peace
for the county of Washington, in the District of Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this
case, the novelty of some of its circumstances, and the real difficulty attending the points which occur
in it require a complete exposition of the principles on which the opinion to be given by the Court is
founded.

These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the
opinion of the Court, there will be some departure in form, though not in substance, from the points
stated in that argument.

In the order in which the Court has viewed this subject, the following questions have been considered
and decided.

1. Has the applicant a right to the commission he demands?

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is:

1. Has the applicant a right to the commission he demands?

His right originates in an act of Congress passed in February, 1801, concerning the District of
Columbia.
After dividing the district into two counties, the eleventh section of this law enacts,

"that there shall be appointed in and for each of the said counties such number of discreet persons to
be justices of the peace as the President of the United States shall, from time to time, think expedient,
to continue in office for five years. "

Page 5 U. S. 155

It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a
justice of peace for the County of Washington was signed by John Adams, then President of the United
States, after which the seal of the United States was affixed to it, but the commission has never
reached the person for whom it was made out.

In order to determine whether he is entitled to this commission, it becomes necessary to inquire


whether he has been appointed to the office. For if he has been appointed, the law continues him in
office for five years, and he is entitled to the possession of those evidences of office, which, being
completed, became his property.

The second section of the second article of the Constitution declares,

"The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint
ambassadors, other public ministers and consuls, and all other officers of the United States, whose
appointments are not otherwise provided for."

The third section declares, that "He shall commission all the officers of the United States."

An act of Congress directs the Secretary of State to keep the seal of the United States,

"to make out and record, and affix the said seal to all civil commissions to officers of the United States
to be appointed by the President, by and with the consent of the Senate, or by the President alone;
provided that the said seal shall not be affixed to any commission before the same shall have been
signed by the President of the United States."

These are the clauses of the Constitution and laws of the United States which affect this part of the
case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the President, and is completely voluntary.

2. The appointment. This is also the act of the President, and is also a voluntary act, though it can
only be performed by and with the advice and consent of the Senate. c han roblesv irt ualawli bra ry

Page 5 U. S. 156

3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty
enjoined by the Constitution. "He shall," says that instrument, "commission all the officers of the
United States."

The acts of appointing to office and commissioning the person appointed can scarcely be considered as
one and the same, since the power to perform them is given in two separate and distinct sections of
the Constitution. The distinction between the appointment and the commission will be rendered more
apparent by adverting to that provision in the second section of the second article of the Constitution
which authorises Congress
"to vest by law the appointment of such inferior officers as they think proper in the President alone, in
the Courts of law, or in the heads of departments;"

thus contemplating cases where the law may direct the President to commission an officer appointed
by the Courts or by the heads of departments. In such a case, to issue a commission would be
apparently a duty distinct from the appointment, the performance of which perhaps could not legally
be refused.

Although that clause of the Constitution which requires the President to commission all the officers of
the United States may never have been applied to officers appointed otherwise than by himself, yet it
would be difficult to deny the legislative power to apply it to such cases. Of consequence, the
constitutional distinction between the appointment to an office and the commission of an officer who
has been appointed remains the same as if in practice the President had commissioned officers
appointed by an authority other than his own.

It follows too from the existence of this distinction that, if an appointment was to be evidenced by any
public act other than the commission, the performance of such public act would create the officer, and
if he was not removable at the will of the President, would either give him a right to his commission or
enable him to perform the duties without it.

These observations are premised solely for the purpose of rendering more intelligible those which
apply more directly to the particular case under consideration. chan roble svirtualawl ibra ry

Page 5 U. S. 157

This is an appointment made by the President, by and with the advice and consent of the Senate, and
is evidenced by no act but the commission itself. In such a case, therefore, the commission and the
appointment seem inseparable, it being almost impossible to show an appointment otherwise than by
proving the existence of a commission; still, the commission is not necessarily the appointment;
though conclusive evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment, being the sole act of the
President, must be completely evidenced when it is shown that he has done everything to be
performed by him.

Should the commission, instead of being evidence of an appointment, even be considered as


constituting the appointment itself, still it would be made when the last act to be done by the
President was performed, or, at furthest, when the commission was complete.

The last act to be done by the President is the signature of the commission. He has then acted on the
advice and consent of the Senate to his own nomination. The time for deliberation has then passed.
He has decided. His judgment, on the advice and consent of the Senate concurring with his
nomination, has been made, and the officer is appointed. This appointment is evidenced by an open,
unequivocal act, and, being the last act required from the person making it, necessarily excludes the
idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the Executive over an officer, not removable at
his will, must cease. That point of time must be when the constitutional power of appointment has
been exercised. And this power has been exercised when the last act required from the person
possessing the power has been performed. This last act is the signature of the commission. This idea
seems to have prevailed with the Legislature when the act passed converting the Department chanroblesvi rt ualawlib ra ry

Page 5 U. S. 158
of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State
shall keep the seal of the United States,

"and shall make out and record, and shall affix the said seal to all civil commissions to officers of the
United States, to be appointed by the President: . . . provided that the said seal shall not be affixed to
any commission before the same shall have been signed by the President of the United States, nor to
any other instrument or act without the special warrant of the President therefor."

The signature is a warrant for affixing the great seal to the commission, and the great seal is only to
be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety,
the verity of the Presidential signature.

It is never to be affixed till the commission is signed, because the signature, which gives force and
effect to the commission, is conclusive evidence that the appointment is made.

The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and
not to be guided by the will of the President. He is to affix the seal of the United States to the
commission, and is to record it.

This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more
eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the
duty of the Secretary of State to conform to the law, and in this he is an officer of the United States,
bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under
the authority of law, and not by the instructions of the President. It is a ministerial act which the law
enjoins on a particular officer for a particular purpose.

If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity of
the commission, but even to the completion of an appointment, still, when the seal is affixed, the
appointment is made, and c hanrob lesvi rtua lawlib rary

Page 5 U. S. 159

the commission is valid. No other solemnity is required by law; no other act is to be performed on the
part of government. All that the Executive can do to invest the person with his office is done, and
unless the appointment be then made, the Executive cannot make one without the cooperation of
others.

After searching anxiously for the principles on which a contrary opinion may be supported, none has
been found which appear of sufficient force to maintain the opposite doctrine.

Such as the imagination of the Court could suggest have been very deliberately examined, and after
allowing them all the weight which it appears possible to give them, they do not shake the opinion
which has been formed.

In considering this question, it has been conjectured that the commission may have been assimilated
to a deed to the validity of which delivery is essential.

This idea is founded on the supposition that the commission is not merely evidence of an appointment,
but is itself the actual appointment -- a supposition by no means unquestionable. But, for the purpose
of examining this objection fairly, let it be conceded that the principle claimed for its support is
established.

The appointment being, under the Constitution, to be made by the President personally, the delivery
of the deed of appointment, if necessary to its completion, must be made by the President also. It is
not necessary that the livery should be made personally to the grantee of the office; it never is so
made. The law would seem to contemplate that it should be made to the Secretary of State, since it
directs the secretary to affix the seal to the commission after it shall have been signed by the
President. If then the act of livery be necessary to give validity to the commission, it has been
delivered when executed and given to the Secretary for the purpose of being sealed, recorded, and
transmitted to the party.

But in all cases of letters patent, certain solemnities are required by law, which solemnities are the
evidences chanrob lesvi rtua lawlib rary

Page 5 U. S. 160

of the validity of the instrument. A formal delivery to the person is not among them. In cases of
commissions, the sign manual of the President and the seal of the United States are those solemnities.
This objection therefore does not touch the case.

It has also occurred as possible, and barely possible, that the transmission of the commission and the
acceptance thereof might be deemed necessary to complete the right of the plaintiff.

The transmission of the commission is a practice directed by convenience, but not by law. It cannot
therefore be necessary to constitute the appointment, which must precede it and which is the mere
act of the President. If the Executive required that every person appointed to an office should himself
take means to procure his commission, the appointment would not be the less valid on that account.
The appointment is the sole act of the President; the transmission of the commission is the sole act of
the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which
can have no influence on the appointment. A commission is transmitted to a person already
appointed, not to a person to be appointed or not, as the letter enclosing the commission should
happen to get into the post office and reach him in safety, or to miscarry.

It may have some tendency to elucidate this point to inquire whether the possession of the original
commission be indispensably necessary to authorize a person appointed to any office to perform the
duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only
negligence, but accident or fraud, fire or theft might deprive an individual of his office. In such a case,
I presume it could not be doubted but that a copy from the record of the Office of the Secretary of
State would be, to every intent and purpose, equal to the original. The act of Congress has expressly
made it so. To give that copy validity, it would not be necessary to prove that the original had been
transmitted and afterwards lost. The copy would be complete evidence that the original had existed,
and that the appointment had been made, but not that the original had been transmitted. If indeed it
should appear that chanroble svi rtualawl ib rary

Page 5 U. S. 161

the original had been mislaid in the Office of State, that circumstance would not affect the operation of
the copy. When all the requisites have been performed which authorize a recording officer to record
any instrument whatever, and the order for that purpose has been given, the instrument is in law
considered as recorded, although the manual labour of inserting it in a book kept for that purpose may
not have been performed.

In the case of commissions, the law orders the Secretary of State to record them. When, therefore,
they are signed and sealed, the order for their being recorded is given, and, whether inserted in the
book or not, they are in law recorded.

A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a
copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has
been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by
law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the
performance of his duty, because it would, equally with the original, attest his appointment.

If the transmission of a commission be not considered as necessary to give validity to an appointment,


still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole
act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so
may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a
nonentity.

That this is the understanding of the government is apparent from the whole tenor of its conduct.

A commission bears date, and the salary of the officer commences from his appointment, not from the
transmission or acceptance of his commission. When a person appointed to any office refuses to
accept that office, the successor is nominated in the place of the person who chan roble svirtualawl i brary

Page 5 U. S. 162

has declined to accept, and not in the place of the person who had been previously in office and had
created the original vacancy.

It is therefore decidedly the opinion of the Court that, when a commission has been signed by the
President, the appointment is made, and that the commission is complete when the seal of the United
States has been affixed to it by the Secretary of State.

Where an officer is removable at the will of the Executive, the circumstance which completes his
appointment is of no concern, because the act is at any time revocable, and the commission may be
arrested if still in the office. But when the officer is not removable at the will of the Executive, the
appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be
resumed.

The discretion of the Executive is to be exercised until the appointment has been made. But having
once made the appointment, his power over the office is terminated in all cases, where by law the
officer is not removable by him. The right to the office is then in the person appointed, and he has the
absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of
State, was appointed, and as the law creating the office gave the officer a right to hold for five years
independent of the Executive, the appointment was not revocable, but vested in the officer legal rights
which are protected by the laws of his country.

To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but
violative of a vested legal right.

This brings us to the second inquiry, which is:

2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy? chanrob lesvi rtua lawlib rary

Page 5 U. S. 163

The very essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury. One of the first duties of government is to
afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition,
and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is
afforded by mere operation of law.

"In all other cases," he says,

"it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by
suit or action at law whenever that right is invaded."

And afterwards, page 109 of the same volume, he says,

"I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall
for the present only remark that all possible injuries whatsoever that did not fall within the exclusive
cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within
the cognizance of the common law courts of justice, for it is a settled and invariable principle in the
laws of England that every right, when withheld, must have a remedy, and every injury its proper
redress."

The Government of the United States has been emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the
violation of a vested legal right.

If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar
character of the case.

It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt
from legal investigation or exclude the injured party from legal redress. In pursuing this inquiry, the
first question which presents itself is whether this can be arranged chan roble svirtualawl ibra ry

Page 5 U. S. 164

with that class of cases which come under the description of damnum absque injuria -- a loss without
an injury.

This description of cases never has been considered, and, it is believed, never can be considered, as
comprehending offices of trust, of honour or of profit. The office of justice of peace in the District of
Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has
received that attention and guardianship. It has been created by special act of Congress, and has
been secured, so far as the laws can give security to the person appointed to fill it, for five years. It is
not then on account of the worthlessness of the thing pursued that the injured party can be alleged to
be without remedy.

Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be


considered as a mere political act belonging to the Executive department alone, for the performance of
which entire confidence is placed by our Constitution in the Supreme Executive, and for any
misconduct respecting which the injured individual has no remedy?

That there may be such cases is not to be questioned. but that every act of duty to be performed in
any of the great departments of government constitutes such a case is not to be admitted.

By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to place on the
pension list all persons whose names are contained in a report previously made by him to Congress. If
he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that
where the law, in precise terms, directs the performance of an act in which an individual is interested,
the law is incapable of securing obedience to its mandate? Is it on account of the character of the
person against whom the complaint is made? Is it to be contended that the heads of departments are
not amenable to the laws of their country?

Whatever the practice on particular occasions may be, the theory of this principle will certainly never
be maintained. chanroblesv irtualawl ibra ry

Page 5 U. S. 165

No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from the
doctrines of the common law. After stating that personal injury from the King to a subject is presumed
to be impossible, Blackstone, Vol. III. p. 255, says,

"but injuries to the rights of property can scarcely be committed by the Crown without the
intervention of its officers, for whom, the law, in matters of right, entertains no respect or delicacy,
but furnishes various methods of detecting the errors and misconduct of those agents by whom the
King has been deceived and induced to do a temporary injustice."

By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river, the
purchaser, on paying his purchase money, becomes completely entitled to the property purchased,
and, on producing to the Secretary of State the receipt of the treasurer upon a certificate required by
the law, the President of the United States is authorized to grant him a patent. It is further enacted
that all patents shall be countersigned by the Secretary of State, and recorded in his office. If the
Secretary of State should choose to withhold this patent, or, the patent being lost, should refuse a
copy of it, can it be imagined that the law furnishes to the injured person no remedy?

It is not believed that any person whatever would attempt to maintain such a proposition.

It follows, then, that the question whether the legality of an act of the head of a department be
examinable in a court of justice or not must always depend on the nature of that act.

If some acts be examinable and others not, there must be some rule of law to guide the Court in the
exercise of its jurisdiction.

In some instances, there may be difficulty in applying the rule to particular cases; but there cannot, it
is believed, be much difficulty in laying down the rule.

By the Constitution of the United States, the President is invested with certain important political
powers, in the chan rob lesvi rtualaw lib rary

Page 5 U. S. 166

exercise of which he is to use his own discretion, and is accountable only to his country in his political
character and to his own conscience. To aid him in the performance of these duties, he is authorized
to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in
which executive discretion may be used, still there exists, and can exist, no power to control that
discretion. The subjects are political. They respect the nation, not individual rights, and, being
entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark
will be perceived by adverting to the act of Congress for establishing the Department of Foreign
Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the
President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an
officer, can never be examinable by the Courts.
But when the Legislature proceeds to impose on that officer other duties; when he is directed
peremptorily to perform certain acts; when the rights of individuals are dependent on the performance
of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at
his discretion, sport away the vested rights of others.

The conclusion from this reasoning is that, where the heads of departments are the political or
confidential agents of the Executive, merely to execute the will of the President, or rather to act in
cases in which the Executive possesses a constitutional or legal discretion, nothing can be more
perfectly clear than that their acts are only politically examinable. But where a specific duty is
assigned by law, and individual rights depend upon the performance of that duty, it seems equally
clear that the individual who considers himself injured has a right to resort to the laws of his country
for a remedy.

If this be the rule, let us inquire how it applies to the case under the consideration of the Court. chan roble svirtualawl ibra ry

Page 5 U. S. 167

The power of nominating to the Senate, and the power of appointing the person nominated, are
political powers, to be exercised by the President according to his own discretion. When he has made
an appointment, he has exercised his whole power, and his discretion has been completely applied to
the case. If, by law, the officer be removable at the will of the President, then a new appointment may
be immediately made, and the rights of the officer are terminated. But as a fact which has existed
cannot be made never to have existed, the appointment cannot be annihilated, and consequently, if
the officer is by law not removable at the will of the President, the rights he has acquired are
protected by the law, and are not resumable by the President. They cannot be extinguished by
Executive authority, and he has the privilege of asserting them in like manner as if they had been
derived from any other source.

The question whether a right has vested or not is, in its nature, judicial, and must be tried by the
judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and proceeded to
act as one, in consequence of which a suit had been instituted against him in which his defence had
depended on his being a magistrate; the validity of his appointment must have been determined by
judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission
which has been made out for him or to a copy of that commission, it is equally a question examinable
in a court, and the decision of the Court upon it must depend on the opinion entertained of his
appointment.

That question has been discussed, and the opinion is that the latest point of time which can be taken
as that at which the appointment was complete and evidenced was when, after the signature of the
President, the seal of the United States was affixed to the commission.

It is then the opinion of the Court:

1. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a
justicechanrob lesvi rtua lawlib rary

Page 5 U. S. 168

of peace for the County of Washington in the District of Columbia, and that the seal of the United
States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature,
and of the completion of the appointment, and that the appointment conferred on him a legal right to
the office for the space of five years.
2. That, having this legal title to the office, he has a consequent right to the commission, a refusal to
deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be inquired whether,

3. He is entitled to the remedy for which he applies. This depends on:

1. The nature of the writ applied for, and

2. The power of this court.

1. The nature of the writ.

Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be

"a command issuing in the King's name from the Court of King's Bench, and directed to any person,
corporation, or inferior court of judicature within the King's dominions requiring them to do some
particular thing therein specified which appertains to their office and duty, and which the Court of
King's Bench has previously determined, or at least supposes, to be consonant to right and justice."

Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much precision
and explicitness the cases in which this writ may be used.

"Whenever," says that very able judge,

"there is a right to execute an office, perform a service, or exercise a franchise (more especially if it
be in a matter of public concern or attended with profit), and a person is kept out of possession, or
dispossessed of such right, and

Page 5 U. S. 169

has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice,
as the writ expresses, and upon reasons of public policy, to preserve peace, order and good
government."

In the same case, he says,

"this writ ought to be used upon all occasions where the law has established no specific remedy, and
where in justice and good government there ought to be one."

In addition to the authorities now particularly cited, many others were relied on at the bar which show
how far the practice has conformed to the general doctrines that have been just quoted.

This writ, if awarded, would be directed to an officer of government, and its mandate to him would be,
to use the words of Blackstone,

"to do a particular thing therein specified, which appertains to his office and duty and which the Court
has previously determined or at least supposes to be consonant to right and justice."

Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public
concern, and is kept out of possession of that right.

These circumstances certainly concur in this case.


Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to
whom, on legal principles, such writ may be directed, and the person applying for it must be without
any other specific and legal remedy.

1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting
between the President of the United States and the heads of departments, necessarily renders any
legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate, and
excites some hesitation with respect to the propriety of entering into such investigation. Impressions
are often received without much reflection or examination, and it is not wonderful that, in such a case
as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the
duty of that court to attend, should, at first view, be considered chanroblesvi rt ualawlib ra ry

Page 5 U. S. 170

by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the
Executive.

It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance
so absurd and excessive could not have been entertained for a moment. The province of the Court is
solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers
perform duties in which they have a discretion. Questions, in their nature political or which are, by the
Constitution and laws, submitted to the Executive, can never be made in this court.

But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it
respects a paper which, according to law, is upon record, and to a copy of which the law gives a right,
on the payment of ten cents; if it be no intermeddling with a subject over which the Executive can be
considered as having exercised any control; what is there in the exalted station of the officer which
shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to
the claim or to issue a mandamus directing the performance of a duty not depending on Executive
discretion, but on particular acts of Congress and the general principles of law?

If one of the heads of departments commits any illegal act under colour of his office by which an
individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued
in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then
can his office exempt him from this particular mode of deciding on the legality of his conduct if the
case be such a case as would, were any other individual the party complained of, authorize the
process?

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be
done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of
a department acts in a case in which Executive discretion is to be exercised, in which he is the mere
organ of Executive will, it ischan roble svi rtualawl ib rary

Page 5 U. S. 171

again repeated, that any application to a court to control, in any respect, his conduct, would be
rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the
performance of which he is not placed under the particular direction of the President, and the
performance of which the President cannot lawfully forbid, and therefore is never presumed to have
forbidden -- as for example, to record a commission, or a patent for land, which has received all the
legal solemnities; or to give a copy of such record -- in such cases, it is not perceived on what ground
the Courts of the country are further excused from the duty of giving judgment that right to be done
to an injured individual than if the same services were to be performed by a person not the head of a
department.
This opinion seems not now for the first time to be taken up in this country.

It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the
pension list such disabled officers and soldiers as should be reported to him by the Circuit Courts,
which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; but some of
the judges, thinking that the law might be executed by them in the character of commissioners,
proceeded to act and to report in that character.

This law being deemed unconstitutional at the circuits, was repealed, and a different system was
established; but the question whether those persons who had been reported by the judges, as
commissioners, were entitled, in consequence of that report, to be placed on the pension list was a
legal question, properly determinable in the Courts, although the act of placing such persons on the
list was to be performed by the head of a department.

That this question might be properly settled, Congress passed an act in February, 1793, making it the
duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as
might be necessary to obtain an adjudication of the Supreme Court of the United chanrob lesvi rtua lawlib rary

Page 5 U. S. 172

States on the validity of any such rights, claimed under the act aforesaid.

After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War,
commanding him to place on the pension list a person stating himself to be on the report of the
judges.

There is, therefore, much reason to believe that this mode of trying the legal right of the complainant
was deemed by the head of a department, and by the highest law officer of the United States, the
most proper which could be selected for the purpose.

When the subject was brought before the Court, the decision was not that a mandamus would not lie
to the head of a department directing him to perform an act enjoined by law, in the performance of
which an individual had a vested interest, but that a mandamus ought not to issue in that case -- the
decision necessarily to be made if the report of the commissioners did not confer on the applicant a
legal right.

The judgment in that case is understood to have decided the merits of all claims of that description,
and the persons, on the report of the commissioners, found it necessary to pursue the mode
prescribed by the law subsequent to that which had been deemed unconstitutional in order to place
themselves on the pension list.

The doctrine, therefore, now advanced is by no means a novel one.

It is true that the mandamus now moved for is not for the performance of an act expressly enjoined
by statute.

It is to deliver a commission, on which subjects the acts of Congress are silent. This difference is not
considered as affecting the case. It has already been stated that the applicant has, to that
commission, a vested legal right of which the Executive cannot deprive him. He has been appointed to
an office from which he is not removable at the will of the Executive, and, being so chan roble svirtualawl ibra ry

Page 5 U. S. 173

appointed, he has a right to the commission which the Secretary has received from the President for
his use. The act of Congress does not, indeed, order the Secretary of State to send it to him, but it is
placed in his hands for the person entitled to it, and cannot be more lawfully withheld by him than by
another person.

It was at first doubted whether the action of detinue was not a specific legal remedy for the
commission which has been withheld from Mr. Marbury, in which case a mandamus would be
improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing
itself, or its value. The value of a public office not to be sold is incapable of being ascertained, and the
applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the
commission or a copy of it from the record.

This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the
record, and it only remains to be inquired:

Whether it can issue from this Court.

The act to establish the judicial courts of the United States authorizes the Supreme Court

"to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts
appointed, or persons holding office, under the authority of the United States."

The Secretary of State, being a person, holding an office under the authority of the United States, is
precisely within the letter of the description, and if this Court is not authorized to issue a writ of
mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely
incapable of conferring the authority and assigning the duties which its words purport to confer and
assign.

The Constitution vests the whole judicial power of the United States in one Supreme Court, and such
inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly
extended to all cases arising under the laws of the United States; and consequently, in some form,
may be exercised over the present chanro blesvi rt ualawlib ra ry

Page 5 U. S. 174

case, because the right claimed is given by a law of the United States.

In the distribution of this power. it is declared that

"The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme
Court shall have appellate jurisdiction."

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior
courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no
negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to
that Court in other cases than those specified in the article which has been recited, provided those
cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power
between the Supreme and inferior courts according to the will of that body, it would certainly have
been useless to have proceeded further than to have defined the judicial power and the tribunals in
which it should be vested. The subsequent part of the section is mere surplusage -- is entirely without
meaning -- if such is to be the construction. If Congress remains at liberty to give this court appellate
jurisdiction where the Constitution has declared their jurisdiction shall be original, and original
jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction
made in the Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in
this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and
therefore such construction is inadmissible unless the words require it. chanroble svi rtualaw lib rary

Page 5 U. S. 175

If the solicitude of the Convention respecting our peace with foreign powers induced a provision that
the Supreme Court should take original jurisdiction in cases which might be supposed to affect them,
yet the clause would have proceeded no further than to provide for such cases if no further restriction
on the powers of Congress had been intended. That they should have appellate jurisdiction in all other
cases, with such exceptions as Congress might make, is no restriction unless the words be deemed
exclusive of original jurisdiction.

When an instrument organizing fundamentally a judicial system divides it into one Supreme and so
many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and
proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the
cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction,
the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and
not appellate; in the other, it is appellate, and not original. ,If any other construction would render the
clause inoperative, that is an additional reason for rejecting such other construction, and for adhering
to the obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate
jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms,
and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will
must be obeyed. This is true; yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a
cause already instituted, and does not create that case. Although, therefore, a mandamus may be
directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the
same as to sustain an original action for that paper, and therefore seems not to belong to chanrob lesvi rtualaw lib rary

Page 5 U. S. 176

appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court
to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the
United States to issue writs of mandamus to public officers appears not to be warranted by the
Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question whether an act repugnant to the Constitution can become the law of the land is a
question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its
interest. It seems only necessary to recognise certain principles, supposed to have been long and well
established, to decide it.

That the people have an original right to establish for their future government such principles as, in
their opinion, shall most conduce to their own happiness is the basis on which the whole American
fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor
ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental.
And as the authority from which they proceed, is supreme, and can seldom act, they are designed to
be permanent.

This original and supreme will organizes the government and assigns to different departments their
respective powers. It may either stop here or establish certain limits not to be transcended by those
departments.

The Government of the United States is of the latter description. The powers of the Legislature are
defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is
written. To what purpose are powers limited, and to what purpose is that limitation committed to
writing, if these limits may at any time be passed by those intended to be restrained? The distinction
between a government with limited and unlimited powers is abolished if those limits do not confine the
persons on whom they are imposed, and if acts prohibited chanrob lesvi rtua lawlib rary

Page 5 U. S. 177

and acts allowed are of equal obligation. It is a proposition too plain to be contested that the
Constitution controls any legislative act repugnant to it, or that the Legislature may alter the
Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and,
like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not
law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people
to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such government
must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by


this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in
the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity,
bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to overthrow in fact what was
established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who
apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws
conflict with each other, the Courts must decide on the operation of each. chan roblesv irtualawl ibra ry

Page 5 U. S. 178

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a
particular case, so that the Court must either decide that case conformably to the law, disregarding
the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine
which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act
of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they
both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a
paramount law are reduced to the necessity of maintaining that courts must close their eyes on the
Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an
act which, according to the principles and theory of our government, is entirely void, is yet, in
practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly
forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving
to the Legislature a practical and real omnipotence with the same breath which professes to restrict
their powers within narrow limits. It is prescribing limits, and declaring that those limits may be
passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political
institutions -- a written Constitution, would of itself be sufficient, in America where written
Constitutions have been viewed with so much reverence, for rejecting the construction. But the
peculiar expressions of the Constitution of the United States furnish additional arguments in favour of
its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution. chanrob lesvi rtua lawlib rary

Page 5 U. S. 179

Could it be the intention of those who gave this power to say that, in using it, the Constitution should
not be looked into? That a case arising under the Constitution should be decided without examining
the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can open it at all,
what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty
on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to
be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the
law?

The Constitution declares that "no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court
condemn to death those victims whom the Constitution endeavours to preserve?

"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court."

Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for
them, a rule of evidence not to be departed from. If the Legislature should change that rule, and
declare one witness, or a confession out of court, sufficient for conviction, must the constitutional
principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers of the
Constitution chan roblesv irt ualawli bra ry

Page 5 U. S. 180

contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an
especial manner to their conduct in their official character. How immoral to impose it on them if they
were to be used as the instruments, and the knowing instruments, for violating what they swear to
support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative
opinion on this subject. It is in these words:

"I do solemnly swear that I will administer justice without respect to persons, and do equal right to
the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on
me as according to the best of my abilities and understanding, agreeably to the Constitution and laws
of the United States."

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if
that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by
him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath
becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the
land, the Constitution itself is first mentioned, and not the laws of the United States generally, but
those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written Constitutions, that a law repugnant to the
Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner,


vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.

Godofredo Reyes for petitioner.


Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of
a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from
taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the
election of said petitioner as member of the National Assembly for the first assembly district of the
Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as
follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for
the position of member of the National Assembly for the first district of the Province of
Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the said district, for having received the most
number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the
following resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS


CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no


se hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y
confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A.
Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said respondent be declared elected member of the
National Assembly for the first district of Tayabas, or that the election of said position be
nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6
of which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o


antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a)
that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which protests against the election of
its members should be presented; (b) that the aforesaid resolution has for its object, and is
the accepted formula for, the limitation of said period; and (c) that the protest in question was
filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the
Motion of Dismissal" alleging that there is no legal or constitutional provision barring the
presentation of a protest against the election of a member of the National Assembly after
confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed
for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely
as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the Legislative
Department of the Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution,
whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted
to them for decision and to matters involving their internal organization, the Electoral
Commission can regulate its proceedings only if the National Assembly has not availed of its
primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of
the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question
herein raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality
of the Legislative Department invested with the jurisdiction to decide "all contests relating to
the election, returns, and qualifications of the members of the National Assembly"; that in
adopting its resolution of December 9, 1935, fixing this date as the last day for the
presentation of protests against the election of any member of the National Assembly, it
acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by
the Constitution to adopt the rules and regulations essential to carry out the power and
functions conferred upon the same by the fundamental law; that in adopting its resolution of
January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in
the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is beyond the judicial
cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the electoral Commission of its jurisdiction to take
cognizance of election protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by
the Constitution as an instrumentality of the Legislative Department, and is not an "inferior
tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the
Code of Civil Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March
2, 1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9,
1935, there was no existing law fixing the period within which protests against the election of
members of the National Assembly should be filed; that in fixing December 9, 1935, as the
last day for the filing of protests against the election of members of the National Assembly,
the Electoral Commission was exercising a power impliedly conferred upon it by the
Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral
Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral Commission
of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the
jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly
of the election of its members, and that such confirmation does not operate to limit the period
within which protests should be filed as to deprive the Electoral Commission of jurisdiction
over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution,
endowed with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,


corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be
article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended
thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition
from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress
of the united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the
petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the merits of the case" by resolution of
this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal
propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter
of the controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in evading the
issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to
overlook the broader aspect of the question and leave it undecided. Neither would we be doing
justice to the industry and vehemence of counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the legislative power that this assent is
required in the enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or
three-fourths, as the case may be, of the National Assembly. The President has also the right to
convene the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointments of certain officers; and the
concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in
its power to determine what courts other than the Supreme Court shall be established, to define their
jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between
the several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable
if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where no express constitutional grant is
found in their constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for a period of
more than one and a half centuries. In our case, this moderating power is granted, if not expressly,
by clear implication from section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the governments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is not
"the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also
be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression
on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed
the election of the herein petitioner to the said body. On the other hand, the Electoral Commission
has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of
protests against the election, returns and qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and
qualifications of members of the National Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.
But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing protests against the
election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand, and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of
American experience and of our own, upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral Commission may not
be interfered with, when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily determined by the judiciary in
justifiable and appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted the American type where the
written constitution is interpreted and given effect by the judicial department. In some countries
which have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This
is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition
courts are bound to assume what is logically their function. For instance, the Constitution of Poland
of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art.
81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in Norway,
Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123,
Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass
upon the validity of ordinary laws. In our case, the nature of the present controversy shows the
necessity of a final constitutional arbiter to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the
opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members of the National
Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second
proposition and determine whether the Electoral Commission has acted without or in excess of its
jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of
the protest filed against the election of the herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the
petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein. The senior Justice in the Commission shall be its
Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly." It is imperative, therefore, that
we delve into the origin and history of this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly appreciate its full meaning, import
and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5)
laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications
of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United
States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of
its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That the Senate and House of
Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of
their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the
particular case s therein specified. This court has had occasion to characterize this grant of power to
the Philippine Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested
elections to the legislature was taken by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report
on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered
to hear legislature but also against the election of executive officers for whose election the vote of
the whole nation is required, as well as to initiate impeachment proceedings against specified
executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme Court and six members of the house of the
legislature to which the contest corresponds, three members to be designed by the majority party
and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a
member in which case the latter shall preside. The foregoing proposal was submitted by the
Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative representation to four members, that is,
two senators to be designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of
Representatives, and in awarding representation to the executive department in the persons of two
representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the
Legislative Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral Commission,
constituted, as to each House, by three members elected by the members of the party
having the largest number of votes therein, three elected by the members of the party having
the second largest number of votes, and as to its Chairman, one Justice of the Supreme
Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as


proposed by the Committee on Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor
of the proposition of the Committee on Legislative Power to create a similar body with reduced
powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The
Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect
to the composition of the Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to
the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all
cases contesting the election of any of its Members shall be judged by an Electoral
Commission, composed of three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others,
proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the soled and exclusive judge of the elections, returns,
and qualifications of the Members", the following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of the said draft:

xxx xxx xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the
first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and
qualifications of the Members of the National Assembly and all cases contesting the election
of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask
from the gentleman from Capiz whether the election and qualification of the member whose
elections is not contested shall also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be
judged; that is why the word "judge" is used to indicate a controversy. If there is no question
about the election of a member, there is nothing to be submitted to the Electoral Commission
and there is nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm
also the election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the
House of Representatives confirming the election of its members is just a matter of the rules
of the assembly. It is not constitutional. It is not necessary. After a man files his credentials
that he has been elected, that is sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body, because
he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected?
What happens with regards to the councilors of a municipality? Does anybody confirm their
election? The municipal council does this: it makes a canvass and proclaims — in this case
the municipal council proclaims who has been elected, and it ends there, unless there is a
contest. It is the same case; there is no need on the part of the Electoral Commission unless
there is a contest. The first clause refers to the case referred to by the gentleman from
Cavite where one person tries to be elected in place of another who was declared elected.
From example, in a case when the residence of the man who has been elected is in
question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by
certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers exercised by
the assembly referring to the elections, returns and qualifications of the members. When
there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman
from Ilocos Norte when I arose a while ago. However I want to ask more questions from the
delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the
election as separate from the first part of the sections which refers to elections, returns and
qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance,
refuse to confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to contest
the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is,
even if two-thirds of the assembly believe that a member has not the qualifications provided
by law, they cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National Assembly
even though that question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons,
Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft
as amended, Delegate Roxas speaking for the Sponsorship Committee said:
xxx xxx xxx

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion


apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The
elections, returns and qualifications of the members of the National Assembly" parece que
da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros
que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon
en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases
contesting the election", de modo que los jueces de la Comision Electoral se limitaran
solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took
place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a
la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente
a dejar el asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa
forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la
Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto
los de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power
to decide contests relating to the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six
(56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing
the representation of the minority party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority party. The Convention rejected
this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-
partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National Assembly,
three elected by the members of the party having the second largest number of votes, and
three justices of the Supreme Court designated by the Chief Justice, the Commission to be
presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of votes therein. The senior
Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole
judge of the election, returns, and qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee,
through President Recto, to effectuate the original intention of the Convention, agreed to insert the
phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which
was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of
the legislature long lodged in the legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the
disposition of contests by the House of Commons in the following passages which are partly quoted
by the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of
the elections, returns, and qualifications of their members, until the year 1770, two modes of
proceeding prevailed, in the determination of controverted elections, and rights of
membership. One of the standing committees appointed at the commencement of each
session, was denominated the committee of privileges and elections, whose functions was to
hear and investigate all questions of this description which might be referred to them, and to
report their proceedings, with their opinion thereupon, to the house, from time to time. When
an election petition was referred to this committee they heard the parties and their witnesses
and other evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed to by
the house. The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in substantially
the same manner as by a committee. The committee of privileges and elections although a
select committee. The committee of privileges and elections although a select committee
was usually what is called an open one; that is to say, in order to constitute the committee, a
quorum of the members named was required to be present, but all the members of the
house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous to the
year 1770, controverted elections had been tried and determined by the house of commons,
as mere party questions, upon which the strength of contending factions might be tested.
Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the Chippenham election. Mr.
Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every
principle of decency and justice were notoriously and openly prostituted, from whence the
younger part of the house were insensibly, but too successfully, induced to adopt the same
licentious conduct in more serious matters, and in questions of higher importance to the
public welfare." Mr. George Grenville, a distinguished member of the house of commons,
undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the
unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections,
or returns of members to serve in parliament." In his speech to explain his plan, on the
motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead
of trusting to the merits of their respective causes, the principal dependence of both parties is
their private interest among us; and it is scandalously notorious that we are as earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not
bound to act by the principles of justice, but by the discretionary impulse of our own
inclinations; nay, it is well known, that in every contested election, many members of this
house, who are ultimately to judge in a kind of judicial capacity between the competitors,
enlist themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest
impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill
which met with the approbation of both houses, and received the royal assent on the 12th of
April, 1770. This was the celebrated law since known by the name of the Grenville Act; of
which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of
commons, and the security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the apparent success of the
remedy, may have led many of the contemporaries of the measure to the information of a
judgement, which was not acquiesced in by some of the leading statesmen of the day, and
has not been entirely confirmed by subsequent experience. The bill was objected to by Lord
North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who
had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament,
and a total abrogation of one of the most important rights and jurisdictions of the house of
commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its members by abdicating its prerogative to two
judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules
of court made for the purpose. Having proved successful, the practice has become imbedded in
English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and
Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of
Canada, election contests which were originally heard by the Committee of the House of Commons,
are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High Court. In Hungary,
the organic law provides that all protests against the election of members of the Upper House of the
Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par.
6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of
Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927
(art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the legislature
and the judiciary is by no means unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for such a contingency, Congress
passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The decision of the commission was to be
binding unless rejected by the two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard, judging from the observations of
Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913]
— Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When , therefore, they deemed it
wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive
function of passing upon and determining the election, returns and qualifications of the members of
the National Assembly, they must have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional the creation of the Electoral
Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln,
First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people, acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes,
when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very
indicative. Its compositions is also significant in that it is constituted by a majority of members of the
legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, is intended to be as complete and
unimpaired as if it had remained originally in the legislature. The express lodging of that power in the
Electoral Commission is an implied denial of the exercise of that power by the National Assembly.
And this is as effective a restriction upon the legislative power as an express prohibition in the
Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B,
1). If we concede the power claimed in behalf of the National Assembly that said body may regulate
the proceedings of the Electoral Commission and cut off the power of the commission to lay down
the period within which protests should be filed, the grant of power to the commission would be
ineffective. The Electoral Commission in such case would be invested with the power to determine
contested cases involving the election, returns and qualifications of the members of the National
Assembly but subject at all times to the regulative power of the National Assembly. Not only would
the purpose of the framers of our Constitution of totally transferring this authority from the legislative
body be frustrated, but a dual authority would be created with the resultant inevitable clash of
powers from time to time. A sad spectacle would then be presented of the Electoral Commission
retaining the bare authority of taking cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever and whenever the National Assembly
has chosen to act, a situation worse than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the National Assembly in procedural matters will
inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that
this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the national
Assembly as a coordinate department of the government and of according validity to its acts, to
avoid what he characterized would be practically an unlimited power of the commission in the
admission of protests against members of the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance should be filed.
It is a settled rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also
conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be followed in filing protests before the
Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may
abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance
of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of
abuse is not argument against the concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of democracy. All the possible abuses
of the government are not intended to be corrected by the judiciary. We believe, however, that the
people in creating the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and each constitutional organ working
within its own particular sphere of discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for which they were created by the
sovereign will. That the actuations of these constitutional agencies might leave much to be desired in
given instances, is inherent in the perfection of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it
does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of the
intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November
15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National Assembly convened on November 25th of that
year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by
that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was filed on December 9 of the same year. The pleadings do not show
when the Electoral Commission was formally organized but it does appear that on December 9,
1935, the Electoral Commission met for the first time and approved a resolution fixing said date as
the last day for the filing of election protest. When, therefore, the National Assembly passed its
resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly,
the Electoral Commission had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records on file in the archives
division of the National Assembly attached to the record of this case upon the petition of the
petitioner, the three justices of the Supreme Court the six members of the National Assembly
constituting the Electoral Commission were respectively designated only on December 4 and 6,
1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members
of the National Assembly had the effect of limiting or tolling the time for the presentation of protests,
the result would be that the National Assembly — on the hypothesis that it still retained the incidental
power of regulation in such cases — had already barred the presentation of protests before the
Electoral Commission had had time to organize itself and deliberate on the mode and method to be
followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and
could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members
against whom no protests had been filed at the time of its passage on December 3, 1935, can not be
construed as a limitation upon the time for the initiation of election contests. While there might have
been good reason for the legislative practice of confirmation of the election of members of the
legislature at the time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of
the authority incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the time for the
filing of said election protests. Confirmation by the National Assembly of the returns of its members
against whose election no protests have been filed is, to all legal purposes, unnecessary. As
contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion
of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of
the election of any member is not required by the Constitution before he can discharge his duties as
such member. As a matter of fact, certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to
any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his seat.
The return of the proper election officers is sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted elections is
certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give
such directions for confirming or altering the return, or for the issue of a writ for a new election, or for
carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec.
13). In the United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine
Legislature fixed the time when protests against the election of any of its members should be filed.
This was expressly authorized by section 18 of the Jones Law making each house the sole judge of
the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the time and manner of filing contest
in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for
the filing of protests had already expired, each house passed a resolution confirming or approving
the returns of such members against whose election no protests had been filed within the prescribed
time. This was interpreted as cutting off the filing of further protests against the election of those
members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature,
Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature;
Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period,
pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period,
vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with
the power to determine all contest relating to the election, returns and qualifications of members of
the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of
that power. There was thus no law nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National Assembly could not do directly, it could
not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties
often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies
thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional
mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases
and controversies, and is the power and duty to see that no one branch or agency of the
government transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific
powers and functions to execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election,
returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns, and
qualifications of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the
legislature with respect to contests relating to the elections, returns and qualifications of its
members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full,
clear and complete, and carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election, returns and
qualifications of members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National Assembly were to retain the
power to prescribe rules and regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones
Law making each house of the Philippine Legislature respectively the sole judge of the
elections, returns and qualifications of its elective members, but also section 478 of Act No.
3387 empowering each house to prescribe by resolution the time and manner of filing
contests against the election of its members, the time and manner of notifying the adverse
party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not
essential before such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom
no protest had been filed prior to said confirmation, does not and cannot deprive the
Electoral Commission of its incidental power to prescribe the time within which protests
against the election of any member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent
Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of
the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests
against the elections, returns and qualifications of members of the National Assembly, nor prevent
the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil
Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs
against the petitioner. So ordered.

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.


Separate Opinions

ABAD SANTOS, J., concurring:

I concur in the result and in most of the views so ably expressed in the preceding opinion. I am,
however, constrained to withhold my assent to certain conclusions therein advanced.

The power vested in the Electoral Commission by the Constitution of judging of all contests relating
to the election, returns, and qualifications of the members of the National Assembly, is judicial in
nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to
regulate the time in which notice of a contested election may be given, is legislative in character.
(M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law.
ed., 572.)

It has been correctly stated that the government established by the Constitution follows
fundamentally the theory of the separation of powers into legislative, executive, and judicial.
Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear
constitutional provision to the contrary, the power to regulate the time in which notice of a contested
election may be given, must be deemed to be included in the grant of legislative power to the
National Assembly.

The Constitution of the United States contains a provision similar to the that found in Article VI,
section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United
States provides that each house of the Congress shall be the judge of the elections, returns, and
qualifications of its own members. Notwithstanding this provision, the Congress has assumed the
power to regulate the time in which notice of a contested election may be given. Thus section 201,
Title 2, of the United States Code Annotated prescribes:

Whenever any person intends to contest an election of any Member of the House of
Representatives of the United States, he shall, within thirty days after the result of such
election shall have been determined by the officer or board of canvassers authorized by law
to determine the same, give notice, in writing, to the Member whose seat he designs to
contest, of his intention to contest the same, and, in such notice, shall specify particularly the
grounds upon which he relies in the contest. (R. S., par. 105.)

The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the
effect that the Senate and House of Representatives, respectively, shall be the sole judges of the
elections, returns, and qualifications of their elective members. Notwithstanding this provision, the
Philippine Legislature passed the Election Law, section 478 of which reads as follows:

The Senate and the House of Representatives shall by resolution respectively prescribe the
time and manner of filing contest in the election of members of said bodies, the time and
manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix
the costs and expenses of contest which may be paid from their respective funds.

The purpose sought to be attained by the creation of the Electoral Commission was not to erect a
body that would be above the law, but to raise legislative elections contests from the category of
political to that of justiciable questions. The purpose was not to place the commission beyond the
reach of the law, but to insure the determination of such contests with the due process of law.

Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article
XV, section 2, of which provides that —

All laws of the Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless
inconsistent with this Constitution, until amended, altered, modified, or repealed by the
National Assembly, and all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution.

The manifest purpose of this constitutional provision was to insure the orderly processes of
government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth
of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative
even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the
Constitution, and that all references in such laws to the government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to the government and corresponding
officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of
the Constitution to hold that section 478 of the Election Law remains operative and should now be
construed to refer to the Electoral Commission, which, in so far as the power to judge election
contests is concerned, corresponds to either the Senate or the House of Representative under the
former regime. It is important to observe in this connection that said section 478 of the Election Law
vested the power to regulate the time and manner in which notice of a contested election may be
given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In
other words, the authority to prescribe the time and manner of filing contests in the elections of
members of the Philippine Legislature was by statute lodged separately in the bodies clothed with
power to decide such contests. Construing section 478 of the Election Law to refer to the National
Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude
that the authority to prescribe the time and manner of filing contests in the election of members of
the National Assembly is vested in the Electoral Commission, which is now the body clothed with
power to decide such contests.

In the light of what has been said, the resolution of the National Assembly of December 3, 1935,
could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of
the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its
resolution of December 9, 1935, which fixed the time with in which written contests must be filed with
the commission.

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to
hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A.
Angara.
Republic of the Philippines
SUPREME COURT
Baguio City

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.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, 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
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, 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 and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,


vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE


PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National


President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, 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, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.

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

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,


AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720


PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive
Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, 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 and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.

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

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH


MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO 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. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, 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.

x---------------------------------x
G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,


vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management,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-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,31 in their capacities as citizens (CFC);

(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

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

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:

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."76The 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

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,93Magallona 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]

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.


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-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,124and 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-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

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.

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?

xxx

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

xxx

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

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:

xxx xxx xxx

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

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:

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.

The scientific evidence supports the conclusion that a zygote is a human organism 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 of human life or of human embryos.164

Conclusion: The Moment of Conception is Reckoned from


Fertilization

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 Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or 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 conceptualized only for convenience by those who had population control in mind. 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 RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in 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 of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169

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 this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170

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 ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

xxx.
(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:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

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.

3] xx x.

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 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:

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.176 Citing 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

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
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
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 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 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. Generally, the
1âw phi1

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.

xxx.

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 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 Union209 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:

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 just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. 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 state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would 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 religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording 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, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the 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,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it 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.
At first blush, it appears that the RH Law recognizes and respects religion and 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 following:

1. 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. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which 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 identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ

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 instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and 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 women, the poor, and the marginalized. [Section 3(i)]

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.

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.

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

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-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 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;

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.

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

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) 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 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 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 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;

"x x x

"(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;

x x x.

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-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.268Thus:

(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 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.

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.

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;
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;

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.

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. No. 10354 which have been
herein declared as constitutional.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

WE CONCUR:

Tingnan ang aking opinyong


Sumasang-ayon at Sumasalungat
MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring Opinion


PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

With Separate concurring opinion See: Separate Concurring Opinion


TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

See Concurring and dissenting See Concurring Opinion


MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

See concurring and dissenting See Concurring and Dissenting Opinion


BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See Separate dissent


MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO


Chief Justice

Footnotes

1
Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary, G.R.
No. 153888, July 9, 2003; 405 SCRA 497, 504.

2
See <http://wn.com/pro-rh_ bill_vs_anti-rh_ bi ll>, last visited on November 5, 20 13; See
also <http://www.abs-cbnnews.com/nation/04/ 19/ I O/h ontiveros-tatad-debate-rh-bill>, last
vi sited on November 5, 201 3.

3
See <http ://news info .inqu irer.net/inquirerheadlines/nation/view/ 20110321-
326743/Stickers-spread-anti-RH-bill-message>, last visited on November 5, 2 01 3; See also
<http ://www.gmanetwork.com/news/story/ 218169/news/nation/carlos-celdran-distributes-
pro-rh-stickers-in-quiapo>, last visited on November 5, 201 3.

4
See <http ://newsinfo. inquirer.net/241 737/massive-church-rally-set-against-rh-bill>, last
visited November 5, 201 3; See also <http://www.splendorofthechurch.eom.ph/201 3/04/29/fi
lipino-catholics-flex-muscles-in-poll-clout/>, last visited November 5, 2013.

5
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 2048 19; rollo (G.R. No. 204819), pp. 3-32.

6
With Prayer for the Urgent Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction; docketed as G.R. No. 204934; rollo (G.R. No. 204934), pp. 3-76.

7
Also proceeding in her personal capacity a citizen and as a member of the Bar.

8
Spouses Reynaldo S. Luistro & Rosie B. Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C . Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho,
Femand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves and on behalf of
their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel
Fernando C . Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco,
Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of their minor
children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor
& Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C.
Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphae l C. Castor, Spouses
Alexander R. Racho & Zara Z. Racho for themselves a nd on behalf of their minor chi ldren
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses
Alfred R. Racho & Franc ine Y. Racho for themse lves and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, C hessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of the ir
minor child Gabrie l Racho, Mindy M. Juatas and on behalf of her minor children Elijah
General Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R.
Laws & Katrina R. Laws

9
With Prayer for Injunction; docketed a s G.R. No. 204957.

10
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 204988; rollo (G.R. No. 204988), pp. 5-3 5.

11
Through and together with its president Nestor B. Lumicao, M.D.

Through and together with its representative/ member of the school board Dr. Rodrigo M.
12

Alenton, M.D.

Rosemarie R. Alenton, Imelda G. Ibarra, Cpa, Lovenia P. Naces, Phd. , Anthony G. Nagac,
13

Earl Anthony C. Gambe And, Marlon I. Yap.

Docketed as G.R. No. 205003; Petition is entitled "Petition (To Declare As Unconstitutional
14

Republic Act No. 10354)." The petition fails to provide any description as to nature of the suit
under the Rules of Court; rollo (G.R. No. 205003), pp. 3-40.

With prayer for the issuance of a Temporary Restraining Order; docketed as G.R. No.
15

205043 ; rollo (G.R. No. 205043), pp. 3-16.

16
Through its vice president and co-founder, Eduardo B.Olaguer.

17
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Prel iminary
Injunction; docketed as G.R. No. 205 138; rollo (G.R. No. 205138), pp. 3-50.

18
Through and together with its president Atty. Ricardo M. Ribo.

Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor,
19

Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio 0.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno And Baldomero Falcone.

20
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Pre lim inary
Injunction; The petition fails to provide any description as to nature of the suit under the
Rules of Court; docketed as G.R. No. 205478; rollo (G.R. No. 205478), pp. 3-26.
Jacqueline H. King, M.D., Cynthia T. Domingo, M.D., Josephine Millado-Lumitao, M.D.,
21

Anthony Perez, Michael Anthony G. Mapa, Carlos Antonio Palad, Wilfredo Jose, Claire
Navarro, Anna Cosio, Gabrie l Dy Liacco

22
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Prelim inary
Injunction; docketed as G.R. No. 20549 1; rollo (G.R. No. 20549 1), pp. 3-13.

23
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 205720; rollo (G.R. No. 205720), pp. 3-90.

24
Through and together with its executive director, Loma Melegrito.

Joselyn B. Basilio, Robert z. Cortes, Ariel A. Crisostomo, Jeremy I. Gatdula, Cri stina A.
25

Montes, Raul Antonio A. N idoy, Winston Conrad B. Padojinog, Rufino L. Policarpio III.

26
Docketed as G.R. No. 206355, rollo (G.R. No. 206355), pp. 3-32.

Through and together with its co-petitioners, Attys. Ramon Pedrosa, Cita Borromeo-Garcia,
27

Stella Acedera, and Berteni Cataluna Causing .

With prayer for a Writ of Preliminary Injunction; docketed as G.R. No. 207 111 ; rollo (G.R.
28

No. 207111 ), pp. 3-51.

Mary M. lmbong, Anthony Victorio B. Lumicao, Joseph Martin Q. Verdejo, Antonio Emma
29

R. Roxas and Lota Lat-Guerrero.

With prayer for a Writ of Pre liminary Injunction; docketed as G.R. No. 207 172; rollo (G.R.
30

No. 207 172), pp. 3-56.

Spouses Juan Carlos Artadi Sarmiento and Francesca Isabelle Besinga-Sarmiento, and
31

Spouses Luis Francis A. Rodrigo, Jr. and Deborah Marie Veronica N. Rodrigo.

32
Docketed as G.R. No. 2 07563; rollo (G.R. No. 2 07563), pp. 3-1 5.

33
Rollo (G.R. No. 204934), pp. 138-1 55.

34
Rollo (G.R. No. 204819), pp. 124 8-1 260.

35
Petition, lmbong v. Ochoa, rollo (G.R. No. 20481 9), pp. 8-1 O; Petit ion, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rol!o (G.R. No. 20493 4), pp. 15-25; Petition, Serve
Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-1 5; Petition,
Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11 ; Petition, Philippine Alliance of
XSeminarians (PAX) v. Ochoa, rol!o (G.R. No. 205138), pp. 8-36; Petition, Echavez v.
Ochoa, rollo (G.R. N o. 205478), pp. 10-1 3; Petition, Millennium Saint Foundation, Inc. v.
Office of the President, rollo (G.R. No . 20635 5), pp . 11-15 ; Petition, Juat v. Ochoa, rollo
(G.R. No. 207111 ), pp. 17- 18; Petition, Buhay Party-list (BUHAY) v. Ochoa, rollo (G.R. No.
204819), pp. 1255- 1256.

Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934),
36

pp. 26-28; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G. R. No. 204988),
pp. 15-1 6; Petition, Echavez v. Ochoa, rollo (G.R. N o. 205478), pp. 13- 14; Petition, Pro-
Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 30-35.

Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
37

204957), pp. 26-27; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R.
No. 205138), pp. 39-44; Petition, Tatad v. Office of the President, rol/o (G. R. No. 205491),
pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp .
59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 2
06355), pp. 25-26.

38
Petition, lmbong v. Ochoa, rollo (G.R. No. 2048 I 9), pp. 20-22; Petition, Alliance for the
Family Foundation, inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 34-38; Petition, Task
Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 26-27;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 6-7; Petition, Pro-Life Philippines
Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 56-75; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 16-22; Petition, Juat
v. Ochoa, rollo (G.R. No. 207 111), pp.28-33 ; Petition, Couples for Christ Foundation, Inc. v.
Ochoa, ro/lo (G.R. No. 207 172), pp. 12- 16.

39
Section 5.23 Skilled Health Professional as a Conscientious Objector. ln order to be
considered a conscientious objector, a skilled health professional shall comply with the
following requirements:

a) Submission to the DOH of an affidavit stating the modem family planning methods
that he or she refuses to provide and his or her reasons for objection;

b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent


location and using a clear/legible font, enumerating the reproductive health services
he or she refuses to provide; and c) Other requirements as determined by the DOH.
xxx.

Provided, That skilled health professionals who are pub lic 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. xx x (Emphases Ours)

40
Joint Memorandum, lmbong v. Ochoa, rollo (G.R. No. 204819), pp. 26 17-26 19.

41
Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, ro/lo (G.R. No. 204934),
p. 40; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp.6-7; Petition, Pro-Life
Philippines Foundation, In c. v. Ochoa, rollo (G.R. No. 205720), p. 81.

Petition, Pro-l ife Philippines Foundation, Inc. v. Ochoa, rollo (G. R. No. 205720), pp. 63-
42

64; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-
23.

Petition, Serve Life Cagayan De Oro City, In c. v. Ochoa, rollo, (G.R. No . 204988), pp. 16-
43

48 ; Petition , Echavez v. Ochoa, rollo (G.R. No. 2 05478), pp. 7-9.


Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 16-
44

48; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 7-9.

Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
45

204957), pp. 30-3 1; Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 1247-
1250; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No.
2063 55), pp. 25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207
172 ), pp. 43-45.

Joint Memorandum, Im bong v. Ochoa, rollo (G.R. No. 2048 19), pp. 2626-2637; Petition,
46

Alcantara, pp. 9-1 3; rollo, (G.R. No. 204934), pp. 146- 150; Petition, Pro-l ife Philippines
Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 78-81.

47
Petition, Couples for Christ Foundation, Inc. v. Ochoa, ro//o (G.R. No. 207172), pp. 32-34.

48
Petition, l mbong v. Ochoa, rollo (G.R. No. 2048 19), pp. 2623-2626; Petition, Alcantara,
pp.5-9; rollo, (G.R. No. 204934), pp. 142- 148; Petition, Serve life Cagayan De Oro City, Inc.
v. Ochoa, rollo, (G.R. No. 204988), pp. 20-21; Petition, Bugarin v. Office of the President,
rollo (G. R. No. 205003), pp. 14- 16; Petit ion, Millennium Saint Foundation, Inc. v. Office of
the President, rollo (G. R. No. 206355), p. 16; Petition, Couples for Christ Foundation, In c. v.
Ochoa, ro//o (G. R. No. 207 172), pp. 16-20.

Petition, Imbong v. Ochoa, rollo (G. R. No. 2 0481 9), pp. 14- 19; Petition, Alliance for the
49

Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 42-44; Petition, Task
Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 21-25;
Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355),
pp. 23-25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172),
pp. 23 -28.

Jo int Memorandum, Jmbong v. Ochoa, rollo (G.R. No . 204819), pp. 257 1-2574; Petition,
50

Olaguer v. Ona, rollo (G.R. No. 205043), pp. 11-1 2; Petition, Tatad v. Office of the
President, rollo (G. R. No. 205491), pp. 7-8; Petition, Couples for Christ Foundation, Inc. v.
Ochoa, rollo (G. R. No. 207172), pp. 28-32.

Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934),
51

pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G. R. No.
205138), pp. 37-38.

52
Section 26. ( I) Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof; Task Force for the Family and l ife Visayas, Inc. v.
Ochoa, rollo (G.R. No. 204957), pp. 6-1 O; Echavez v. Ochoa, rollo (G. R. No. 205478), pp.
9-10.

53
Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 14-30.

54
Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 894-900; Petition, Couples
for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 45-48; Petition, Tillah v.
Executive Secretary, rollo (G.R. No. 207563) pp. 6-12.

55
Rollo (G .. R. No. 204819), pp. 362-480.
56
Rollo (G .. R. No. 204819), pp. 195-353.

57
Rollo (G .. R. No. 204819), pp. 487-528.

58
Rollo (G.R. No. 204934), pp. 871-1007.

59
Rollo (G.R. No. 204819), pp.1 306-1334; rollo, (G.R. No. 204934), pp. 98-132.

60
Rollo (G.R. No. 204819), pp. 736-780.

61
In her Motion for Leave to Intervene, Senator Pilar Ju liana S. Cayetano manifested that
she was adopting as her own the arguments raised by respondents Dr. Esperanza I. Cabral,
Jamie Galvez-Tan, and Dr. Alberto G. Romualdez in their Petition for Intervention; See rollo
(G..R. No. 20481 9), pp. 173 1-1 783. After being directed by the Court to file their respective
memoranda, intervenors Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez manjfested on November 18, 201 3, that they were adopting the arguments
raised by Congressman Lagman in his Joint Memorandum; See rollo (G..R. No. 20481 9),
pp. 3061-3070. On November 26, 201 3, Senator Pilar Juliana S. Cayetano file d her
separate Memorandum ; see, rollo (G. .R. No. 204819), pp. 3032-3059.

62
Resolution dated March 15, 201 3.

63
Resolution, dated July 16, 201 3.

64
In its Resolution, dated August 27, 201 3, the Court required the parties to also include the
following in their respective memoranda:

1. What is the relation of the first portion of Section 7 on Access to Family Planning
to the theory that R.A. No. I 0354 is an anti-poor program that seeks to reduce the
population of the poor?

2. How is the second paragraph of the same section related to the proposition that
R.A. No. 10354 encourages sex among minors?

3. In relation to Section 23 on Prohibited Acts, where in the law can you find the
definition of the term ' health care service provider' ? Is the definition of a ' public
health care service provider ' found in Section 4, paragraph (n) of the law sufficient
for the Court to understand the meaning of a 'private health care service provider' or
should the Court refer to the Implementing Rules and Regulations which refer to
'health care providers'?

4. With respect to ' health care providers' under the Implementing Rules and
Regulations, does it make a difference that they are called ' health care providers'
and not ' health care service providers'? Does the fact that there is a missing word
indicate that there is a difference or that the tautology being proposed actually refers
to different objects? If in the affirmative, is there enough basis to say that the law is a
criminal statute that has sufficient definitions for purposes of punitive action?

5. In relation to Section 23(a)(l), how will the State be able to locate the programs
and services on which the health care service provider has the duty to give
information? If the terminology of ' health care service provider ' includes ' private
health care service provider', which includes private hospitals and private doctors, is
the State duty-bound to consequently provide these providers with information on the
programs and services that these providers should give information on?

6. As regards programs, is there a duty on the part of the State to provide a way by
which private health care service providers can have access to information on
reproductive health care programs as defined in Section 4, paragraph (r)? What is
the implication of the fact that the law requires even private parties with the duty to
provide information on government programs on the criminal liability of private health
care service providers?

7. As regards services, what is the distinction between 'information' and 'services'


considering that 'services' in different portions of the statute include providing of
information?

8. What are the specific elements of every sub-group of crime in Section 23 and what
are the legal bases for the determination of each element?

9. Are there existing provisions in other statutes relevant to the legal definitions found
in R.A. No. 10354?

10. Why is there an exemption for the religious or conscientious objector in


paragraph (3) of Section 23 and not in paragraphs ( 1) and (2)? What is the
distinction between paragraph (3) and paragraphs ( 1) and (2)?

11 . Section 23(a)(3) penalizes refusal to extend quality health care services and
information 'on account of the person's marital status, gender, age, religious
convictions, personal circumstances, or nature of work.' What if the refusal is not on
account of one's marital status, gender, age, religious convictions, personal
circumstances, or nature of work, or what if the refuser simply does not state the
reason for the refusal? Will there still be a criminal liability under Section 23(a)(3)?

12. Still on Section (23 )(a)(3) on referring a person to another facility or provider, is
this the same or analogous to referral of a person to seek second opinion? What is
the medical standard for the provision of a second opinion? In referring to another
professional or service provider for a second opinion, is it the patient who is not
comfortable with the opinion given by the first doctor that triggers the duty or option
to refer? How is it different with the situation in Section 23(a)(3) when it is the doctor
who is not comfortable about giving an opinion? Is the difference legally material?

13. How does Section 23, paragraph (c) relate to Article 134 the Labor Code which
requires employers to provide family planning services?

14. Section 24 provides that in case the offender is a juridical person, the penalties in
the statute shall be imposed on the president or any responsible officer. For each
offense in Section 23, how will the corporate officer be made responsible if there is
no actual participation by the hospital board directors or officers of such action? Does
Section 24 in relation to Section 23 require corporate action? What is the situation
being contemplated in the second paragraph of Section 24 before there can be
accountability for criminal violations?
15. Section 7 provides that access of minors to information and family planning
services must be with the written consent of parents or guardians. Is the re a penalty
in the law for those who will make these information and services (e.g. ,
contraceptives) available to minors without the parent's consent? How does this
relate to Section 14 which requires the Department of Education to formulate a
curriculum which 'shall be used by public schools' and ' may be adopted by private
schools'? Is there a penalty for teaching sex education without the parents' or
guardians' written consent? Correlatively, is there a penalty for private schools which
do not teach sex education as formulated by the DepEd considering the use of the
word ' may'?

65
Section I , R.A. No. 4729

Entitled "An Act Regulating the Practice of Pharmacy and Setting Standards of
66

Pharmaceutical Education in the Philippines."

See http://www.pop.org/content/coercive-population-ploys-in-ph ilippines-1428, last visited


67

October 17, 2013.

68
Entitled "Revising the Population Act of Nineteen Hundred And Seventy-One."

<http://www.senate.gov.ph/publications/PB%202009-03%20-
69

%20Promoting%20Reproductive%20Health.pdf->, last visited October 17, 2013.

70
Held in Cairo, Egypt from September 5- 13, 1994.

71
Section 17, R.A. 97 10.

72
See <www. nscb.gov.ph/secstat/d)pop.asp>; last accessed February 2 0, 2014.

73
Alliance /or the Family Foundation, Inc. (A LFI) v. Ochoa, rollo (G.R. No. 204934), p. 1408.

74
Id.

75
Consolidated Comment, OSG, rollo (G. R. No. 204819), p. 376.

76
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 377.

77
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 378.

78
G.R. No. 178552, October 5, 20 10, 632 SCRA 146, 166.

79
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 385, 387-388.

80
Consolidated Comment, OSG, rollo (G.R. No. 2048 19), pp .3 81-384.

81
Angara v. Electoral Commission, 63 Phil. 139, 158 ( 1936).

82
Constitution, Art. VI, Sec. I.
83
Constitution, Art. Vll , Sec. I.

84
Constitution, Art. VIII, Sec. 1.

85
Supra note 81.

See Association of Small Landowners in the Phil., Inc., et al. v. Secretary of Agrarian
86

Reform, 256 Phil. 777, 799 (1989).

87
Francisco, Jr. v. Th e House of Representatives, G.R. No. 160261 , November I 0, 2003,
citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

88
Garcia v. Executive Secretary, 602 Phil. 64, 77-78 (2009).

Kida v. Senate of the Philippines, G. R. No. 19627 I, October 18, 20 I I, 659 SCRA 270,
89

326-327.

Biraogo v. The Philippine Truth Commission, G. R. No. I 92935 & G.R. No. 193036,
90

December 7, 2010, 637 SCRA 7 8, I 77.

91
Tañada v. Angara, 338 Phil. 546, 575 (I997).

92
453 Phil. 586 (2003).

93
G.R. No. 188078, 25 January 2010, 611 SCRA137.

94
G.R No. 187 167, July 16, 2011 , 655 SCRA 476.

Francisco v. House of Representatives, 460 Phil. 83 0, 882-883 (2003), citing Florentino P.


95

Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial
Review And Decision Making, 37 A MJJUR 17, 24 (1 992).

96
Biraogo v. Philippine Truth Commission, G. R. No . 192935, December 7, 20 10, 637
SCRA 78, 148 ; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. No. 178552, October 5, 20 10, 632 SCRA 146, 166-1 67; Senate of the Philippines v.
Ermita, 522 Phil. I, 27 (2006); Francisco v. House of Representatives, 460 Phil. 83 0, 892
(2003).

97
Consolidated Comment, OSG, rollo, (G.R. No. 2 04819), pp. 375-376.

Comment-In-Intervention, Hontiveros, et al., rollo, (G.R. No. 204934), pp. 106- 109;
98

Comment-In-Intervention, Cabral et al., rollo, (G.R. No. 204819), pp. 500-501.

99
Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 9 1-92 (2007).

Jriformation Technology Foundation of the Philipp ines v. Commission on Elections , 499


100

Phil. 281, 304-305 (2005).

Lawyers Against Monopoly And Poverty (LAMP) v. Th e Secretary of Budget and


101

Management, G. R. No. 164987, April 24, 201 2, 670 SCRA 373 , 383.
The Province Of North Cotabato v. The Government of the Republic of the Philippines,
102

589 Phil. 387, 481 (2008).

103
Id. at 483 .

104
Tañada v. Angara, 338 Phil. 546, 574 ( 1997).

105
Consolidated Comment, OSG, rollo (G. R. No. 204819), p. 381.

106
See United States v. Salerno, 481 U.S. 739 ( 1987).

107
The First Amendment of the US Constitution reads: Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the government for a redress of grievances.

Romualdez v. Commission on Elections, 576 Phi l. 357 (2008); Romualdez v. Hon.


108

Sandiganbayan, 479 Phil. 265 (2004 ); Estrada v. Sandiganbayan, 421 Phi I. 290 (200 I).

109
Resolution, Romualdez v. Commission on Elect ions, 594 Phil. 305, 3 16 (2008).

110
Constitution, Article VIII , Section 1.

111
Consolidated Comment, OSG, rollo (G. R. No. 2048 19), pp. 375-376.

112
Consolidated Comment, OSG, rollo (G. R. No. 2048 19), p. 384.

113
Anak Mindanao Party-list Group v. Th e Executive Secretary, 558 Phil. 338, 350 (2007).

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr,
114

369 U.S. 186 ( 1962).

Dissenting Opinion, J. Carpio; Romualdez v. Commission on Elections, 576 Phil. 357, 406
115

(2008).

Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement
116

Agency, 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of Energy, 346 Phil.
321 (1997); De Guia v. COMELEC, G .R . No. 104 71 2, May 6, I 992, 208 SCRA 420, 422.

117
503 Phil. 42, 53 (2005).

118
84 Phil. 368, 373 (1949).

119
464 Phil. 375, 385 (2004).

120
Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 388-389.

The Province Of North Cotabato v. The Government of the Republic of the Philippines,
121

supra note 102; Ortega v. Quezon City Government, 506 Phil. 373, 380 (2005); and
Gonzales v. Comelec, 137 Phil. 471 (1969).
Section 26. (I) Every bill passed by the Congress shall embrace only one subject which
122

shall be expressed in the title thereof.

Petition, Task Force for the Family and life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957),
123

pp. 6-10; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 9-10.

124
Joint Memorandum, Lagman, rollo, (G.R. No. 204819) pp. 212-214.

125
Consolidated Comment, OSG, rollo (G.R. No. 204819, pp.389-393.

126
ALFI Memorandum, rollo (G. .R. N o. 204934), p. 1396.

127
ALFI Memorandum, rollo (G. .R. No. 204934), p. 1396.

128
ALFI Memorandum, rollo (G. .R. No. 204934), p. 1396.

129
Cruz, Philippine Political Law, 2002 Edition, pp. 15 7-1 58; citing 82 CJS 365.

130
Petition, lmbong v. Ochoa, rol/o (G. R. No. 2048 19), pp. 8-10; Petition, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 15-25; Petition, Serve
Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-1 5; Petition,
Olaguer v. Ona, ro/lo (G. R. No. 205043), pp. 10-11 ; Petition, Philippine Alliance of
XSeminarians (PAX) v. Ochoa, ro/lo (G.R. No . 2051 38), pp. 8-36; Petition, Echavez v.
Ochoa, rollo (G.R. No. 2 05478), pp. 10-13; Petition, Millennium Saint Foundation, Inc. v.
Office of the President, rollo (G. R. No. 206355), pp. 11-15; Petition, Juat v. Ochoa, rollo
(G.R. No. 207111 ), pp. 17-18; Petition, Buhay Partylist (BU HAY) v. Ochoa, rollo (G. R. No.
2048 19), pp. 1255 -1256.

131
Petition, Alliance for the Family Foundation, inc. (ALFI) v. Ochoa, rollo (G. R. No. 204934),
pp. 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988),
pp. 13-1 5; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11; Petition, Philippine
Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205138), pp. 8-36; Petition,
Echavez v. Ochoa, rollo (G. R. No . 205478), pp. 10-13; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-1 5; Petition, Juat
v. Ochoa, rollo (G.R. No. 207111), pp. 17-18; Petition, Buhay Partylist (BUHAY) v. Ochoa,
rollo (G.R. No. 204819), pp. 1255-1256.

132
Petition, Pro-Life Philippines Foundation, inc. v. Ochoa, rollo (G.R. No. 205720), pp. 14-30.

Memorandum, Alcantara, rollo (G.R. No. 204819), p. 2133; Reply, Olaguer v. Ona, rollo
133

(G.R. No. 205043), pp. 339-340.

134
Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 393-396; Comment-In-
Intervention, Lagman, rollo, (G.R. No. 204819), pp. 230-233; Comment-In-Intervention,
C4RH, rollo (G.R. No. 2048 19), pp. 1091-11 92; Hontiveros, rollo (G.R. No. 204934), pp.
111-1 16; Memorandum, Cayetano,, rollo (G.R. No. 204819), pp. 3038-3041.

135
Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 396-410.

136
Comment-In-Intervention, Lagman, rollo, (G.R. No. 204819), pp. 225-342.
137
Article 3, Universal Declaration of Human Rights.

138
See Republic Act No. 4729, dated June 18, 1966.

139
See http://www.pop.org/content/coerci ve-population-ploys- in-philippines- 1428 , last
visited October 17, 2013.

<http://www.senate.gov.ph/publications/PB%202009-03%20-
140

%20Promoting%20Reproductive%20 Health.pdt>, last visited October 17, 2013.

141
<http://www.pop.org/content/ coercive-population-p loys-in-ph ii ippines-1428>

During the deliberation, it was agreed that the individual members of the Court ca n express
their own views on this matter.

142
Petition, Alliance/or the Family Foundation, Inc. (AL FI) v. Ochoa, rollo (G.R. No. 204934),
pp . 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 2
04988), pp. 13- 15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11 ; Petition,
Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205 138), pp. 8-36 ;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13 ; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-15; Petition, Juat
v. Ochoa, rollo (G.R. No. 207 111), pp. 17-18; Petition, Buhay Party/isl (BUHAY) v. Ochoa,
rollo (G.R. No. 2048 19), pp. 1255-1256.

143
Comment-ln-lntervention, Lag man, rollo, (G. R. No. 204819), pp. 225-342.

144
G.R. No. 202242, July 17, 201 2, 676 SCRA 579.

145
Webster's Third International Dictionary, 1993 Edition, p. 469.

146
Black's Law Dictionary, Fifth Edition, p. 262.

147
G.R. No. 182836, October 13, 2009, 618 Phil. 634 (2009).

Gonzales v. Carhart (Nos. 05-380 and 05-1382), No. 05- 380, 413 F. 3d 791 ; 05- 1382,
148

435 F. 3d 1163,

149
http: //www.law.comell.edu/supct/html/05-380.ZO.html, last visited February 15, 2014.

150
Record of the Constitutional Commission, Volume 4, September 16, 1986, p. 668.

151
Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 596.

152
Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 669.

153
Record of the Constitutional Commission, Volume 4, September 19, 1986, p. 800.

154
Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711 .

155
Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711.
156
Record of the Constitutional Commission, Volume 4 , September 17, 1986, p. 745 .

157
TSN, July 9, 2013 , pp. 23-24.

158
Id.

159
4th Edition, p. 375

160
Id, p. 609

Sumpaico, Gutierrez, Luna, Pareja, Ramos and Baja-Panlilio, 2"d Edition, (2002), pp. 76-
161

77.

162
Moore, Persaud, Torchia, The Developing Human: Clinically Oriented Embryo logy,
International Edition, 9th Edition (2013), pp. 1-5, 13.

O'Rahilly, Ronan and Muller, Fabiola, Huma n Embryo logy & Teratology. 2nd edition. New
163

York: Wiley-Liss, 1996, pp. 8, 29, cited at: http://www.princeton.edu/-


prolife/articles/embryoguotes2.html, last visited February 15, 2014.

From https://www.philippinemedicalassociation .org/downloads/circular-forms/ Position-


164

Paper-on-the-Republic-Health-Bill-%28Responsible-Parenthood-Bill%29.pdf. last visited


March 26, 2014.

165
Comment-In-Intervention, Lagman, rol/o, (G.R. No. 204819), pp. 225-342.

166
Id.

167
Id.

See <http://americanpregnancy.org/duringpregnancy/ fetaldevelopment I .htm>, last visited


168

April 7, 2014.

Joint Memorandum of the House of Representatives and Respondent- Intervenor Rep.


169

Edee I C. Lagman), Section 40, Rollo, G.R. No. 2048 19, p. 2343.

170
Concurring Opinion (Justice Carpio), p. 3.

171
See TSN, July 9, 2013, p. 100.

172
Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p. 25.

173
Section 3.01 For purposes ofthese Rules, the terms shall be defin ed as fo llows:

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 fertil ized
ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Admini stration (F DA) .

xxxx
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
fam ily 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) .

174
Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p. 25
.

175
Separate Opinion (Justice Del Castillo), p. 19 .

176
Petition, Alliance for the Family Foundation, Inc. (A LFI} v. Ochoa, rollo (G. R. No.
204934), pp. 26-28; Petition, Serve l ife Cagayan De Oro City, Inc. v. Ochoa, rolfo, (G. R. No
. 204988), pp. 15-16; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 13- 14;
Petition, Pro-life Philippines Foundation, Inc. v. Ochoa, rolfo (G.R. No. 205 720), pp. 30-35.

Memorandum, Alliance for the Family Foundation, rollo, (G.R. No . 204934), pp. 1419-
177

1445.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
178

defined as follows:

xxxx

(p) Reproductive Health (RH) refers to the state of complete physical, mental and
social well-being and not merely the absence of disease or infirmity, in all matters
relating to the reproductive system and to its functions and processes. This implies
that people are able to have a responsible, safe, consensual and satisfying sex life,
that they have the capability to reproduce and the freedom to decide if, when , and
how often to do so. This further implies that women and men attain equal
relationships in matters related to sexual relations and reproduction.

Section 4. Definition of Terms . - For the purpose of this Act, the following terms shall be
179

defined as follows:

xxxx

(w) Sexual health refers to a state of physical, mental and social well-being in relation
to sexuality. It requires a positive and respectful approach to sexuality and sexual
relationships, as well as the possibility of having pleasurable and safe sexual
experiences, free from coercion, discrimination and violence.

Me morandum, Alcantara, rollo, (G.R. No. 204934)p. 2136; Memorandum , PAX, rollo
180

(G.R. No. 205 138), pp. 2154-2155.

181
Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 415-416.

Gamboa v. Finance Secretary, G.R. No. 176579, June 28, 2011 , 6 52 SCRA 690, 738-
182

739.

183
335 Phil. 82 ( 1997).
Memorandum , Alliance for the Family Foundation, In c. (ALFI) v. Ochoa, rol/o (G.R. No.
184

204934), p. 1408.

185
Id.

186
Memorandum, Lagman, rollo (G.R. No. 204819), pp. 2359-2361.

187
Separate Opinion (Justice Leonardo-De Castro) p. 54.

Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G. R. No. 205138), pp.
188

40-41.

Petition, Task Force/or the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
189

204957), pp. 26-27; Petition, Philippine Alliance of XSem inarians (PAX) v. Ochoa, rollo
(G.R. No. 205138), pp. 39-44; Petition, Tatadv. Office of the President, rollo (G.R. No.
205491), pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No.
205720), pp . 59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the President,
rollo (G.R. No. 2063 55), pp. 25-26.

190
Joint Memorandum, lmbong/Luat, rollo (G.R. No. 204819), p. 2615.

191
Joint Memorandum, Imbong/Luat, rollo (G.R. No. 204819), pp . 2616-2621.

192
Petition, Echavez v. Ochoa, rollo (GR. No. 205478), pp. 6-7.

193
Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-23.

194
Petition, Coup les for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207 I 72), pp. 20-23.

Petition, Alliance for the Family Foundation, Inc. (A LFI) v. Ochoa, rollo (G.R. No. 204934),
195

pp. 35-37.; Petition, Millennium Saint Foundation, In c. v. Office of the President, rollo (G.R.
No. 206355), pp. 17- 18.

Memorandum, Cayetano, rollo (G.R. No. 204819), p. 3050; Comment-in-Lntervention,


196

Cabral, rollo (G.R. No. 2 04819), p. 5 11.

197
Memorandum, OSG, rollo (G. R. No. 204819), p. 2677.

198
Memorandum, Cayetano, rollo (G.R. No. 2048 19), p. 3050.

199
Joint Memorandum Lagman, rol!o (G.R. No. 2048 19), p. 2361.

Memorandum . C4RH, rollo (G.R. No. 204819), p. 2189; Memorandum, Cayetano, rollo
200

(G.R. No. 204819), p. 3050-305 1.

201
Memorandum, Cayetano, rollo (G.R. No. 204 819), p. 3050 .

202
Memorandum, OSG, rollo (G.R. No. 204819), p. 2677.

203
Memorandum, OSG, rollo (G.R. No. 204819), p . 2679.
204
Memorandum, OSG, rollo (G.R. No. 204819), p. 2679.

Cruz, Philippine Political Law, 2000 ed ., p. 179, citing Justice Laurel in Engel v. Vitale,
205

370 US 421.

206
Gorospe, Constitutional Law, Vol. I, p. I 007

207
Bernas, The 1987 Constitution, 2009 Ed. , p. 330

208
Gorospe, Constitutional Law, Vol. I, p. I 066

209
59 SC RA 54 (1974).

210
Escritor v. Estrada, A.M. No. P-02-1651 , June 22, 2006, 525 Phil. 110, 140- 141 (2006).

211
106 Phil. 2 (1959).

212
Gerona v. Secretary of Education, 106 Phil. 2, 9- 10 ( 1959).

213
Ebralinag v. Division Superintendent of Schools, 219 SCRA 25 6 ( 1993 ), March 1, 1993.

214
525 Phil. 110 (2006).

215
Id. at 137.

216
Id. at 148.

217
Id . at 149.

218
Id. at 175.

219
Id. at 168- 169.

220
Estrada v. Escritor, 455 Phil. 4 11 , 560 (2003).

221
Cruz, Constitutional Law, 2000 edition, pp. 178-1 79.

222
Bernas, The 1987 Constitution, 2009 Ed. , p. 330.

223
Separate Opinion, Cruz, Ebralinag v. Division Superintendent of Schools, 219 SCRA 25 6
( 1993 ), March 1, 1993.

224
Estrada v. Escritor, supra note 220, at 537.

225
20 130 CSIH 36.

http://www. skepticink.com/tippling/201 3/05/0 5/conscientious-objection-to-abortion -


226

cathoIic-midwives-win-appeal/; last visited February 22, 2014


http://ukhumanrightsblog.com/20 13/05/03/conscientious-objection-to-abortion-catholic-
227

midwives-win-appeal; last visited February 22 , 2014

228
453 Phil. 440 (2003).

Fernando on the Philippine Constitution, 1974 ed. , p. 565; See Dissenting Opinion
229

Makasiar, Garcia v. The Faculty Admission Committee G. R. No. L-40779, November 28,
1975.

230
TSN , August 13, 201 3, pp. 52-54.

231
TSN, August27, 201 3, pp. 71-72

232
Islamic Da'wah Council of the Philippines v. Office of the Executive Secretary of the Office
of the President of the Philippines, supra note 228 at 450.

http://fatherbemasblogs. blogspot.com/2011 _02_0 !_archive.html ; last vi sited February


233

15, 2014.

234
Estrada v. Escritor, supra note 210.

235
TSN , Aug ust 27 , 201 3, p. 130.

236
http ://www. lifenews.com/2011 /09/01 /philippines-sees-matemal-mortalitv-decline-
without-abortion; last visited March 9, 2014 [Researchers from the Institute for Health Metrics
and Evaluation of the University of Washington in Seattle examined maternal mortality rates
in 181 countries and found the rate (the number of women's deaths per 100,000) dropped by
81 percent in the Philippines between .1980 and 2008. The decrease comes as the largely
Catholic nation has resister efforts to legalize abortions, even though the United Nations and
pro-abortion groups claim women will supposedly die in illegal abortions and increase the
maternal mortality rate if abortion is prohibited.

The 2010 study, published in Lancet, shows the Philippines outpaced first-world
nations like Germany, Russia and Israel - where abortions are legal - in cutting
maternal mortality rates.

Meanwhile, the National Statistical Coordination Board in the Philippines, according


to Spero Forum, has shown the same results. From 1990-2010, the daily maternal
mortality rate dropped 21 percent, its figures indicated. The World Health
Organization also found that the Filipino maternal mortality rate dropped 48 percent
from 1990 to 2008.

237
TSN, July 23, 2013 , p. 23.

Memorandum, Alliance for the Family Foundation, Inc. {ALFI) v. Ochoa, rollo (G.R. No.
238

204934), p. 1407.

SEC. 15. Certificate of Compliance. - No marriage license shall be issued by the Local
239

Civil Registrar unless the applicants present a Certificate of Compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate instructions
and information on responsible parenthood, family planning, breastfeeding and infant
nutrition.

240
Petition, Couples for Christ Foundation, In c. v. Ochoa, rollo (G.R. No. 207 172), p. 29.

241
80 CONST. Art XV, §2 .

242
Separate Opinion (Justice Leonardo-De Castro), p. 42-43.

243
130 Phil. 415 (1968).

244
Id . at 436.

245
81 Griswold v. Connecticut,3 81U.S. 479, June7, 1965.

246
Id.

247
Section 12, Article II , 1987 Constitution.

248
Bernas, The 1987 Constitution, 2009 Ed., p . 85.

249
(ii) Parental consent or that of the person exercising parental authority in the case of
abused minors, where the parent or the person exercising parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial office
of the court. 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 and in no case shall consent be required in emergency or
serious cases as defined in Republic Act No. 8344.

250
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 15- 16.

Memorandum, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G. R. No.
251

204934), pp. 1453- 1496.

252
Records, 1986 Constitutional Convention, Volume IV, pp. 401-402 .

253
Article II , Section 13, 1987 Constitution.

Petition, Task Force for the Family and life Visayas, Inc. v. Ochoa, rollo (G. R. No.
254

204957), pp. 24-25.

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.


255

178552, October 5, 2010; People v. Nazario, No. L-44 143, August 3 1, 1988, 165 SCRA
186, 195.

Philippine International Trading Corporation v. COA, G.R. No. 1835 17, June 22, 2010,
256

621 SC RA 461, 469.

257
Webster's Third New International Dictionary, 1993 Edition, p. 1145 .
258
Webster's Third New International Dictionary, 1993 Edition, p. 1252.

SEC. 3. Guiding Principles for Implementation. - Th is Act declares the following as guiding
259

principles:

xxxx

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-
abortifacient, effective and quality reproductive health care services and supplies is
essential in the promotion of people's right to health, especially those of women, the
poor, and the marginalized, and shall be incorporated as a component of basic
health care;

(e) The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modem methods which
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
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide fun ding support to
promote modern natural methods of family planning, especially the Billings Ovulation
Method, consistent with the needs of acceptors and the irreligious convictions;

(f) The State shall promote programs that: (I) enable individuals and couples to have
the number of children they desire with due consideration to the health, particularly of
women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions: Provided, That no one
shall be deprived, for economic reasons, of the rights to have children; (2) achieve
equitable allocation and utilization of resources; (3) ensure effective partnership
among national government, local government units (LGUs) and the private sector in
the design, implementation, coordination, integration, monitoring and evaluation of
people-centered programs to enhance the quality of life and environmental
protection; (4) conduct studies to analyze demographic trends including demographic
dividends from sound population policies towards sustainable human development in
keeping with the principles of gender equality, protection of mothers and children,
born and unborn and the promotion and protection of women's reproductive rights
and health ; and (5) conduct scientific studies to determine the safety and efficacy of
alternative medicines and methods for reproductive health care development;

xxxx

(g) The provision of reproductive health care, information and supplies giving priority
to poor beneficiaries as identified through the NHTS-PR and other government
measures of identifying marginalization must be the primary responsibility of the
national government consistent with its obligation to respect, protect and promote the
right to health and the right to life;

xxxx

(i) Active participation by nongovernment organizations (NGOs), women's and


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 women,
the poor, and the marginalized;

xxxx

(l) There shall be no demographic or population targets and the mitigation, promotion
and/or stabilization of the population growth rate is incidental to the advancement of
reproductive health ;

xxxx

(n) The resources of the country must be made to serve the entire population, espec
ially the poor, and allocations thereof must be adequate and effective: Provided, That
the life of the unborn is protected;

(o) Development is a multi-faceted process that calls for the harmonization and
integration of policies, plans, programs and projects that seek to uplift the quality of
life of the people, more particularly the poor, the needy and the marginalized;

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
260

defined as follows:

xxxx

(r) Reproductive health care program refers to the systematic and integrated
provision of reproductive health care to all citizens prioritizing women, the poor,
marginalized and those invulnerable or crisis situations.

xxxx

(aa) Sustainable human development refers to bringing people, particularly the poor
and vulnerable, to the center of development process, the central purpose of which is
the creation of an enabling environment in which all can enjoy long, healthy and
productive lives, done in the manner that promotes their rights and protects the life
opportunities of future generation s and the natural ecosystem on which all life
depends.

261
Biraogo v. Th e Philippine Truth Commission, supra note 90.

Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G. R. No. 204988), pp. 16-
262

48; Petition, Echavez v. Ochoa, rollo (G. R. No. 205478), pp. 7-9.

263
Except the practice of law which is under the supervision of the Supreme Court.

264
United States v. Jesus, 3 1 Phil. 218, 230 (1915).

265
Petition , Echavez v. Ochoa, rollo (G. R. N o. 205478), p. 8.

With reference to Section 2 , 3(E), 4(L), 9 and I 9(C) of the RH La w; Petition, ALFI, rollo
266

(G.R. No. 204934), pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa,
rollo (G.R. No. 205138), pp. 37-38.
267
358 Phil. 410 (1998) .

Pimentel, Jr. v. Executive Secretary, G.R. No. 195770, July 17, 201 2, 676 SCRA 551,
268

559.

269
Id . at 559-560.

270
Id. at 561.

271
See Section 6, R.A. No. 10354.

272
See Section 5, R.A . No. 10354.

273
See Section 16, R.A . No. 1354.

Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011, 659 SCRA 270,
274

306.

275
Id. at 305.

276
Petition, Pro-life Philippines Foundation, Inc. v. Ochoa, rollo (GR. N o. 205 720), pp. 14-30.

277
Gettel , Political Science, Revised Edition, p. 180.

278
454 Phil. 504 (2003).

Separate Opinion, Chief Justice Reynato S. Puno, Republic v. Sandiganbayan, 454 Phi l.
279

504 (2003).

280
https://www.cia.gov/ library/ publications/the-world-factbook/rankorder/2127rank.html ; last
visited March 21, 2014

St. Josephs College v. St. Josephs College Workers' Association (Samahan), 489 Phil.
281

559, 572-573 (2005) ; and Cebu Institute of Technology v. Opie, G.R. No. L-58870, 18
December 1987, 156 SCRA 629.
Republic of the Philippines
SUPREME COURT
Baguio City

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.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, 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
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, 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 and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,


vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE


PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National


President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, 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, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.

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

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,


AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720


PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive
Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, 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 and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.

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

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH


MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO 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. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, 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.

x---------------------------------x
G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,


vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management,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-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,31 in their capacities as citizens (CFC);

(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

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

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:

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."76The 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

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,93Magallona 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]

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.


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-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,124and 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-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

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.

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?

xxx

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

xxx

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

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:

xxx xxx xxx

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

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:

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.

The scientific evidence supports the conclusion that a zygote is a human organism 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 of human life or of human embryos.164

Conclusion: The Moment of Conception is Reckoned from


Fertilization

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 Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or 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 conceptualized only for convenience by those who had population control in mind. 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 RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in 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 of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169

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 this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170

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 ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

xxx.
(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:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

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.

3] xx x.

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 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:

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.176 Citing 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

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
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
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 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 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. Generally, the
1âw phi1

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.

xxx.

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 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 Union209 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:

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 just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. 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 state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would 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 religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording 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, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the 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,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it 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.
At first blush, it appears that the RH Law recognizes and respects religion and 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 following:

1. 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. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which 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 identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ

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 instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and 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 women, the poor, and the marginalized. [Section 3(i)]

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.

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.

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

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-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 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;

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.

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

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) 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 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 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 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;

"x x x

"(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;

x x x.

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-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.268Thus:

(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 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.

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.

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;
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;

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.

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. No. 10354 which have been
herein declared as constitutional.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

WE CONCUR:

Tingnan ang aking opinyong


Sumasang-ayon at Sumasalungat
MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring Opinion


PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

With Separate concurring opinion See: Separate Concurring Opinion


TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

See Concurring and dissenting See Concurring Opinion


MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

See concurring and dissenting See Concurring and Dissenting Opinion


BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See Separate dissent


MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO


Chief Justice

Footnotes

1
Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary, G.R.
No. 153888, July 9, 2003; 405 SCRA 497, 504.

2
See <http://wn.com/pro-rh_ bill_vs_anti-rh_ bi ll>, last visited on November 5, 20 13; See
also <http://www.abs-cbnnews.com/nation/04/ 19/ I O/h ontiveros-tatad-debate-rh-bill>, last
vi sited on November 5, 201 3.

3
See <http ://news info .inqu irer.net/inquirerheadlines/nation/view/ 20110321-
326743/Stickers-spread-anti-RH-bill-message>, last visited on November 5, 2 01 3; See also
<http ://www.gmanetwork.com/news/story/ 218169/news/nation/carlos-celdran-distributes-
pro-rh-stickers-in-quiapo>, last visited on November 5, 201 3.

4
See <http ://newsinfo. inquirer.net/241 737/massive-church-rally-set-against-rh-bill>, last
visited November 5, 201 3; See also <http://www.splendorofthechurch.eom.ph/201 3/04/29/fi
lipino-catholics-flex-muscles-in-poll-clout/>, last visited November 5, 2013.

5
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 2048 19; rollo (G.R. No. 204819), pp. 3-32.

6
With Prayer for the Urgent Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction; docketed as G.R. No. 204934; rollo (G.R. No. 204934), pp. 3-76.

7
Also proceeding in her personal capacity a citizen and as a member of the Bar.

8
Spouses Reynaldo S. Luistro & Rosie B. Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C . Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho,
Femand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves and on behalf of
their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel
Fernando C . Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco,
Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of their minor
children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor
& Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C.
Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphae l C. Castor, Spouses
Alexander R. Racho & Zara Z. Racho for themselves a nd on behalf of their minor chi ldren
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses
Alfred R. Racho & Franc ine Y. Racho for themse lves and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, C hessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of the ir
minor child Gabrie l Racho, Mindy M. Juatas and on behalf of her minor children Elijah
General Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R.
Laws & Katrina R. Laws

9
With Prayer for Injunction; docketed a s G.R. No. 204957.

10
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 204988; rollo (G.R. No. 204988), pp. 5-3 5.

11
Through and together with its president Nestor B. Lumicao, M.D.

Through and together with its representative/ member of the school board Dr. Rodrigo M.
12

Alenton, M.D.

Rosemarie R. Alenton, Imelda G. Ibarra, Cpa, Lovenia P. Naces, Phd. , Anthony G. Nagac,
13

Earl Anthony C. Gambe And, Marlon I. Yap.

Docketed as G.R. No. 205003; Petition is entitled "Petition (To Declare As Unconstitutional
14

Republic Act No. 10354)." The petition fails to provide any description as to nature of the suit
under the Rules of Court; rollo (G.R. No. 205003), pp. 3-40.

With prayer for the issuance of a Temporary Restraining Order; docketed as G.R. No.
15

205043 ; rollo (G.R. No. 205043), pp. 3-16.

16
Through its vice president and co-founder, Eduardo B.Olaguer.

17
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Prel iminary
Injunction; docketed as G.R. No. 205 138; rollo (G.R. No. 205138), pp. 3-50.

18
Through and together with its president Atty. Ricardo M. Ribo.

Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor,
19

Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio 0.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno And Baldomero Falcone.

20
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Pre lim inary
Injunction; The petition fails to provide any description as to nature of the suit under the
Rules of Court; docketed as G.R. No. 205478; rollo (G.R. No. 205478), pp. 3-26.
Jacqueline H. King, M.D., Cynthia T. Domingo, M.D., Josephine Millado-Lumitao, M.D.,
21

Anthony Perez, Michael Anthony G. Mapa, Carlos Antonio Palad, Wilfredo Jose, Claire
Navarro, Anna Cosio, Gabrie l Dy Liacco

22
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Prelim inary
Injunction; docketed as G.R. No. 20549 1; rollo (G.R. No. 20549 1), pp. 3-13.

23
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 205720; rollo (G.R. No. 205720), pp. 3-90.

24
Through and together with its executive director, Loma Melegrito.

Joselyn B. Basilio, Robert z. Cortes, Ariel A. Crisostomo, Jeremy I. Gatdula, Cri stina A.
25

Montes, Raul Antonio A. N idoy, Winston Conrad B. Padojinog, Rufino L. Policarpio III.

26
Docketed as G.R. No. 206355, rollo (G.R. No. 206355), pp. 3-32.

Through and together with its co-petitioners, Attys. Ramon Pedrosa, Cita Borromeo-Garcia,
27

Stella Acedera, and Berteni Cataluna Causing .

With prayer for a Writ of Preliminary Injunction; docketed as G.R. No. 207 111 ; rollo (G.R.
28

No. 207111 ), pp. 3-51.

Mary M. lmbong, Anthony Victorio B. Lumicao, Joseph Martin Q. Verdejo, Antonio Emma
29

R. Roxas and Lota Lat-Guerrero.

With prayer for a Writ of Pre liminary Injunction; docketed as G.R. No. 207 172; rollo (G.R.
30

No. 207 172), pp. 3-56.

Spouses Juan Carlos Artadi Sarmiento and Francesca Isabelle Besinga-Sarmiento, and
31

Spouses Luis Francis A. Rodrigo, Jr. and Deborah Marie Veronica N. Rodrigo.

32
Docketed as G.R. No. 2 07563; rollo (G.R. No. 2 07563), pp. 3-1 5.

33
Rollo (G.R. No. 204934), pp. 138-1 55.

34
Rollo (G.R. No. 204819), pp. 124 8-1 260.

35
Petition, lmbong v. Ochoa, rollo (G.R. No. 20481 9), pp. 8-1 O; Petit ion, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rol!o (G.R. No. 20493 4), pp. 15-25; Petition, Serve
Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-1 5; Petition,
Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11 ; Petition, Philippine Alliance of
XSeminarians (PAX) v. Ochoa, rol!o (G.R. No. 205138), pp. 8-36; Petition, Echavez v.
Ochoa, rollo (G.R. N o. 205478), pp. 10-1 3; Petition, Millennium Saint Foundation, Inc. v.
Office of the President, rollo (G.R. No . 20635 5), pp . 11-15 ; Petition, Juat v. Ochoa, rollo
(G.R. No. 207111 ), pp. 17- 18; Petition, Buhay Party-list (BUHAY) v. Ochoa, rollo (G.R. No.
204819), pp. 1255- 1256.

Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934),
36

pp. 26-28; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G. R. No. 204988),
pp. 15-1 6; Petition, Echavez v. Ochoa, rollo (G.R. N o. 205478), pp. 13- 14; Petition, Pro-
Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 30-35.

Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
37

204957), pp. 26-27; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R.
No. 205138), pp. 39-44; Petition, Tatad v. Office of the President, rol/o (G. R. No. 205491),
pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp .
59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 2
06355), pp. 25-26.

38
Petition, lmbong v. Ochoa, rollo (G.R. No. 2048 I 9), pp. 20-22; Petition, Alliance for the
Family Foundation, inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 34-38; Petition, Task
Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 26-27;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 6-7; Petition, Pro-Life Philippines
Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 56-75; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 16-22; Petition, Juat
v. Ochoa, rollo (G.R. No. 207 111), pp.28-33 ; Petition, Couples for Christ Foundation, Inc. v.
Ochoa, ro/lo (G.R. No. 207 172), pp. 12- 16.

39
Section 5.23 Skilled Health Professional as a Conscientious Objector. ln order to be
considered a conscientious objector, a skilled health professional shall comply with the
following requirements:

a) Submission to the DOH of an affidavit stating the modem family planning methods
that he or she refuses to provide and his or her reasons for objection;

b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent


location and using a clear/legible font, enumerating the reproductive health services
he or she refuses to provide; and c) Other requirements as determined by the DOH.
xxx.

Provided, That skilled health professionals who are pub lic 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. xx x (Emphases Ours)

40
Joint Memorandum, lmbong v. Ochoa, rollo (G.R. No. 204819), pp. 26 17-26 19.

41
Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, ro/lo (G.R. No. 204934),
p. 40; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp.6-7; Petition, Pro-Life
Philippines Foundation, In c. v. Ochoa, rollo (G.R. No. 205720), p. 81.

Petition, Pro-l ife Philippines Foundation, Inc. v. Ochoa, rollo (G. R. No. 205720), pp. 63-
42

64; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-
23.

Petition, Serve Life Cagayan De Oro City, In c. v. Ochoa, rollo, (G.R. No . 204988), pp. 16-
43

48 ; Petition , Echavez v. Ochoa, rollo (G.R. No. 2 05478), pp. 7-9.


Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 16-
44

48; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 7-9.

Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
45

204957), pp. 30-3 1; Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 1247-
1250; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No.
2063 55), pp. 25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207
172 ), pp. 43-45.

Joint Memorandum, Im bong v. Ochoa, rollo (G.R. No. 2048 19), pp. 2626-2637; Petition,
46

Alcantara, pp. 9-1 3; rollo, (G.R. No. 204934), pp. 146- 150; Petition, Pro-l ife Philippines
Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 78-81.

47
Petition, Couples for Christ Foundation, Inc. v. Ochoa, ro//o (G.R. No. 207172), pp. 32-34.

48
Petition, l mbong v. Ochoa, rollo (G.R. No. 2048 19), pp. 2623-2626; Petition, Alcantara,
pp.5-9; rollo, (G.R. No. 204934), pp. 142- 148; Petition, Serve life Cagayan De Oro City, Inc.
v. Ochoa, rollo, (G.R. No. 204988), pp. 20-21; Petition, Bugarin v. Office of the President,
rollo (G. R. No. 205003), pp. 14- 16; Petit ion, Millennium Saint Foundation, Inc. v. Office of
the President, rollo (G. R. No. 206355), p. 16; Petition, Couples for Christ Foundation, In c. v.
Ochoa, ro//o (G. R. No. 207 172), pp. 16-20.

Petition, Imbong v. Ochoa, rollo (G. R. No. 2 0481 9), pp. 14- 19; Petition, Alliance for the
49

Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 42-44; Petition, Task
Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 21-25;
Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355),
pp. 23-25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172),
pp. 23 -28.

Jo int Memorandum, Jmbong v. Ochoa, rollo (G.R. No . 204819), pp. 257 1-2574; Petition,
50

Olaguer v. Ona, rollo (G.R. No. 205043), pp. 11-1 2; Petition, Tatad v. Office of the
President, rollo (G. R. No. 205491), pp. 7-8; Petition, Couples for Christ Foundation, Inc. v.
Ochoa, rollo (G. R. No. 207172), pp. 28-32.

Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934),
51

pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G. R. No.
205138), pp. 37-38.

52
Section 26. ( I) Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof; Task Force for the Family and l ife Visayas, Inc. v.
Ochoa, rollo (G.R. No. 204957), pp. 6-1 O; Echavez v. Ochoa, rollo (G. R. No. 205478), pp.
9-10.

53
Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 14-30.

54
Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 894-900; Petition, Couples
for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 45-48; Petition, Tillah v.
Executive Secretary, rollo (G.R. No. 207563) pp. 6-12.

55
Rollo (G .. R. No. 204819), pp. 362-480.
56
Rollo (G .. R. No. 204819), pp. 195-353.

57
Rollo (G .. R. No. 204819), pp. 487-528.

58
Rollo (G.R. No. 204934), pp. 871-1007.

59
Rollo (G.R. No. 204819), pp.1 306-1334; rollo, (G.R. No. 204934), pp. 98-132.

60
Rollo (G.R. No. 204819), pp. 736-780.

61
In her Motion for Leave to Intervene, Senator Pilar Ju liana S. Cayetano manifested that
she was adopting as her own the arguments raised by respondents Dr. Esperanza I. Cabral,
Jamie Galvez-Tan, and Dr. Alberto G. Romualdez in their Petition for Intervention; See rollo
(G..R. No. 20481 9), pp. 173 1-1 783. After being directed by the Court to file their respective
memoranda, intervenors Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez manjfested on November 18, 201 3, that they were adopting the arguments
raised by Congressman Lagman in his Joint Memorandum; See rollo (G..R. No. 20481 9),
pp. 3061-3070. On November 26, 201 3, Senator Pilar Juliana S. Cayetano file d her
separate Memorandum ; see, rollo (G. .R. No. 204819), pp. 3032-3059.

62
Resolution dated March 15, 201 3.

63
Resolution, dated July 16, 201 3.

64
In its Resolution, dated August 27, 201 3, the Court required the parties to also include the
following in their respective memoranda:

1. What is the relation of the first portion of Section 7 on Access to Family Planning
to the theory that R.A. No. I 0354 is an anti-poor program that seeks to reduce the
population of the poor?

2. How is the second paragraph of the same section related to the proposition that
R.A. No. 10354 encourages sex among minors?

3. In relation to Section 23 on Prohibited Acts, where in the law can you find the
definition of the term ' health care service provider' ? Is the definition of a ' public
health care service provider ' found in Section 4, paragraph (n) of the law sufficient
for the Court to understand the meaning of a 'private health care service provider' or
should the Court refer to the Implementing Rules and Regulations which refer to
'health care providers'?

4. With respect to ' health care providers' under the Implementing Rules and
Regulations, does it make a difference that they are called ' health care providers'
and not ' health care service providers'? Does the fact that there is a missing word
indicate that there is a difference or that the tautology being proposed actually refers
to different objects? If in the affirmative, is there enough basis to say that the law is a
criminal statute that has sufficient definitions for purposes of punitive action?

5. In relation to Section 23(a)(l), how will the State be able to locate the programs
and services on which the health care service provider has the duty to give
information? If the terminology of ' health care service provider ' includes ' private
health care service provider', which includes private hospitals and private doctors, is
the State duty-bound to consequently provide these providers with information on the
programs and services that these providers should give information on?

6. As regards programs, is there a duty on the part of the State to provide a way by
which private health care service providers can have access to information on
reproductive health care programs as defined in Section 4, paragraph (r)? What is
the implication of the fact that the law requires even private parties with the duty to
provide information on government programs on the criminal liability of private health
care service providers?

7. As regards services, what is the distinction between 'information' and 'services'


considering that 'services' in different portions of the statute include providing of
information?

8. What are the specific elements of every sub-group of crime in Section 23 and what
are the legal bases for the determination of each element?

9. Are there existing provisions in other statutes relevant to the legal definitions found
in R.A. No. 10354?

10. Why is there an exemption for the religious or conscientious objector in


paragraph (3) of Section 23 and not in paragraphs ( 1) and (2)? What is the
distinction between paragraph (3) and paragraphs ( 1) and (2)?

11 . Section 23(a)(3) penalizes refusal to extend quality health care services and
information 'on account of the person's marital status, gender, age, religious
convictions, personal circumstances, or nature of work.' What if the refusal is not on
account of one's marital status, gender, age, religious convictions, personal
circumstances, or nature of work, or what if the refuser simply does not state the
reason for the refusal? Will there still be a criminal liability under Section 23(a)(3)?

12. Still on Section (23 )(a)(3) on referring a person to another facility or provider, is
this the same or analogous to referral of a person to seek second opinion? What is
the medical standard for the provision of a second opinion? In referring to another
professional or service provider for a second opinion, is it the patient who is not
comfortable with the opinion given by the first doctor that triggers the duty or option
to refer? How is it different with the situation in Section 23(a)(3) when it is the doctor
who is not comfortable about giving an opinion? Is the difference legally material?

13. How does Section 23, paragraph (c) relate to Article 134 the Labor Code which
requires employers to provide family planning services?

14. Section 24 provides that in case the offender is a juridical person, the penalties in
the statute shall be imposed on the president or any responsible officer. For each
offense in Section 23, how will the corporate officer be made responsible if there is
no actual participation by the hospital board directors or officers of such action? Does
Section 24 in relation to Section 23 require corporate action? What is the situation
being contemplated in the second paragraph of Section 24 before there can be
accountability for criminal violations?
15. Section 7 provides that access of minors to information and family planning
services must be with the written consent of parents or guardians. Is the re a penalty
in the law for those who will make these information and services (e.g. ,
contraceptives) available to minors without the parent's consent? How does this
relate to Section 14 which requires the Department of Education to formulate a
curriculum which 'shall be used by public schools' and ' may be adopted by private
schools'? Is there a penalty for teaching sex education without the parents' or
guardians' written consent? Correlatively, is there a penalty for private schools which
do not teach sex education as formulated by the DepEd considering the use of the
word ' may'?

65
Section I , R.A. No. 4729

Entitled "An Act Regulating the Practice of Pharmacy and Setting Standards of
66

Pharmaceutical Education in the Philippines."

See http://www.pop.org/content/coercive-population-ploys-in-ph ilippines-1428, last visited


67

October 17, 2013.

68
Entitled "Revising the Population Act of Nineteen Hundred And Seventy-One."

<http://www.senate.gov.ph/publications/PB%202009-03%20-
69

%20Promoting%20Reproductive%20Health.pdf->, last visited October 17, 2013.

70
Held in Cairo, Egypt from September 5- 13, 1994.

71
Section 17, R.A. 97 10.

72
See <www. nscb.gov.ph/secstat/d)pop.asp>; last accessed February 2 0, 2014.

73
Alliance /or the Family Foundation, Inc. (A LFI) v. Ochoa, rollo (G.R. No. 204934), p. 1408.

74
Id.

75
Consolidated Comment, OSG, rollo (G. R. No. 204819), p. 376.

76
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 377.

77
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 378.

78
G.R. No. 178552, October 5, 20 10, 632 SCRA 146, 166.

79
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 385, 387-388.

80
Consolidated Comment, OSG, rollo (G.R. No. 2048 19), pp .3 81-384.

81
Angara v. Electoral Commission, 63 Phil. 139, 158 ( 1936).

82
Constitution, Art. VI, Sec. I.
83
Constitution, Art. Vll , Sec. I.

84
Constitution, Art. VIII, Sec. 1.

85
Supra note 81.

See Association of Small Landowners in the Phil., Inc., et al. v. Secretary of Agrarian
86

Reform, 256 Phil. 777, 799 (1989).

87
Francisco, Jr. v. Th e House of Representatives, G.R. No. 160261 , November I 0, 2003,
citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

88
Garcia v. Executive Secretary, 602 Phil. 64, 77-78 (2009).

Kida v. Senate of the Philippines, G. R. No. 19627 I, October 18, 20 I I, 659 SCRA 270,
89

326-327.

Biraogo v. The Philippine Truth Commission, G. R. No. I 92935 & G.R. No. 193036,
90

December 7, 2010, 637 SCRA 7 8, I 77.

91
Tañada v. Angara, 338 Phil. 546, 575 (I997).

92
453 Phil. 586 (2003).

93
G.R. No. 188078, 25 January 2010, 611 SCRA137.

94
G.R No. 187 167, July 16, 2011 , 655 SCRA 476.

Francisco v. House of Representatives, 460 Phil. 83 0, 882-883 (2003), citing Florentino P.


95

Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial
Review And Decision Making, 37 A MJJUR 17, 24 (1 992).

96
Biraogo v. Philippine Truth Commission, G. R. No . 192935, December 7, 20 10, 637
SCRA 78, 148 ; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. No. 178552, October 5, 20 10, 632 SCRA 146, 166-1 67; Senate of the Philippines v.
Ermita, 522 Phil. I, 27 (2006); Francisco v. House of Representatives, 460 Phil. 83 0, 892
(2003).

97
Consolidated Comment, OSG, rollo, (G.R. No. 2 04819), pp. 375-376.

Comment-In-Intervention, Hontiveros, et al., rollo, (G.R. No. 204934), pp. 106- 109;
98

Comment-In-Intervention, Cabral et al., rollo, (G.R. No. 204819), pp. 500-501.

99
Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 9 1-92 (2007).

Jriformation Technology Foundation of the Philipp ines v. Commission on Elections , 499


100

Phil. 281, 304-305 (2005).

Lawyers Against Monopoly And Poverty (LAMP) v. Th e Secretary of Budget and


101

Management, G. R. No. 164987, April 24, 201 2, 670 SCRA 373 , 383.
The Province Of North Cotabato v. The Government of the Republic of the Philippines,
102

589 Phil. 387, 481 (2008).

103
Id. at 483 .

104
Tañada v. Angara, 338 Phil. 546, 574 ( 1997).

105
Consolidated Comment, OSG, rollo (G. R. No. 204819), p. 381.

106
See United States v. Salerno, 481 U.S. 739 ( 1987).

107
The First Amendment of the US Constitution reads: Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the government for a redress of grievances.

Romualdez v. Commission on Elections, 576 Phi l. 357 (2008); Romualdez v. Hon.


108

Sandiganbayan, 479 Phil. 265 (2004 ); Estrada v. Sandiganbayan, 421 Phi I. 290 (200 I).

109
Resolution, Romualdez v. Commission on Elect ions, 594 Phil. 305, 3 16 (2008).

110
Constitution, Article VIII , Section 1.

111
Consolidated Comment, OSG, rollo (G. R. No. 2048 19), pp. 375-376.

112
Consolidated Comment, OSG, rollo (G. R. No. 2048 19), p. 384.

113
Anak Mindanao Party-list Group v. Th e Executive Secretary, 558 Phil. 338, 350 (2007).

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr,
114

369 U.S. 186 ( 1962).

Dissenting Opinion, J. Carpio; Romualdez v. Commission on Elections, 576 Phil. 357, 406
115

(2008).

Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement
116

Agency, 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of Energy, 346 Phil.
321 (1997); De Guia v. COMELEC, G .R . No. 104 71 2, May 6, I 992, 208 SCRA 420, 422.

117
503 Phil. 42, 53 (2005).

118
84 Phil. 368, 373 (1949).

119
464 Phil. 375, 385 (2004).

120
Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 388-389.

The Province Of North Cotabato v. The Government of the Republic of the Philippines,
121

supra note 102; Ortega v. Quezon City Government, 506 Phil. 373, 380 (2005); and
Gonzales v. Comelec, 137 Phil. 471 (1969).
Section 26. (I) Every bill passed by the Congress shall embrace only one subject which
122

shall be expressed in the title thereof.

Petition, Task Force for the Family and life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957),
123

pp. 6-10; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 9-10.

124
Joint Memorandum, Lagman, rollo, (G.R. No. 204819) pp. 212-214.

125
Consolidated Comment, OSG, rollo (G.R. No. 204819, pp.389-393.

126
ALFI Memorandum, rollo (G. .R. N o. 204934), p. 1396.

127
ALFI Memorandum, rollo (G. .R. No. 204934), p. 1396.

128
ALFI Memorandum, rollo (G. .R. No. 204934), p. 1396.

129
Cruz, Philippine Political Law, 2002 Edition, pp. 15 7-1 58; citing 82 CJS 365.

130
Petition, lmbong v. Ochoa, rol/o (G. R. No. 2048 19), pp. 8-10; Petition, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 15-25; Petition, Serve
Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-1 5; Petition,
Olaguer v. Ona, ro/lo (G. R. No. 205043), pp. 10-11 ; Petition, Philippine Alliance of
XSeminarians (PAX) v. Ochoa, ro/lo (G.R. No . 2051 38), pp. 8-36; Petition, Echavez v.
Ochoa, rollo (G.R. No. 2 05478), pp. 10-13; Petition, Millennium Saint Foundation, Inc. v.
Office of the President, rollo (G. R. No. 206355), pp. 11-15; Petition, Juat v. Ochoa, rollo
(G.R. No. 207111 ), pp. 17-18; Petition, Buhay Partylist (BU HAY) v. Ochoa, rollo (G. R. No.
2048 19), pp. 1255 -1256.

131
Petition, Alliance for the Family Foundation, inc. (ALFI) v. Ochoa, rollo (G. R. No. 204934),
pp. 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988),
pp. 13-1 5; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11; Petition, Philippine
Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205138), pp. 8-36; Petition,
Echavez v. Ochoa, rollo (G. R. No . 205478), pp. 10-13; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-1 5; Petition, Juat
v. Ochoa, rollo (G.R. No. 207111), pp. 17-18; Petition, Buhay Partylist (BUHAY) v. Ochoa,
rollo (G.R. No. 204819), pp. 1255-1256.

132
Petition, Pro-Life Philippines Foundation, inc. v. Ochoa, rollo (G.R. No. 205720), pp. 14-30.

Memorandum, Alcantara, rollo (G.R. No. 204819), p. 2133; Reply, Olaguer v. Ona, rollo
133

(G.R. No. 205043), pp. 339-340.

134
Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 393-396; Comment-In-
Intervention, Lagman, rollo, (G.R. No. 204819), pp. 230-233; Comment-In-Intervention,
C4RH, rollo (G.R. No. 2048 19), pp. 1091-11 92; Hontiveros, rollo (G.R. No. 204934), pp.
111-1 16; Memorandum, Cayetano,, rollo (G.R. No. 204819), pp. 3038-3041.

135
Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 396-410.

136
Comment-In-Intervention, Lagman, rollo, (G.R. No. 204819), pp. 225-342.
137
Article 3, Universal Declaration of Human Rights.

138
See Republic Act No. 4729, dated June 18, 1966.

139
See http://www.pop.org/content/coerci ve-population-ploys- in-philippines- 1428 , last
visited October 17, 2013.

<http://www.senate.gov.ph/publications/PB%202009-03%20-
140

%20Promoting%20Reproductive%20 Health.pdt>, last visited October 17, 2013.

141
<http://www.pop.org/content/ coercive-population-p loys-in-ph ii ippines-1428>

During the deliberation, it was agreed that the individual members of the Court ca n express
their own views on this matter.

142
Petition, Alliance/or the Family Foundation, Inc. (AL FI) v. Ochoa, rollo (G.R. No. 204934),
pp . 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 2
04988), pp. 13- 15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11 ; Petition,
Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205 138), pp. 8-36 ;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13 ; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-15; Petition, Juat
v. Ochoa, rollo (G.R. No. 207 111), pp. 17-18; Petition, Buhay Party/isl (BUHAY) v. Ochoa,
rollo (G.R. No. 2048 19), pp. 1255-1256.

143
Comment-ln-lntervention, Lag man, rollo, (G. R. No. 204819), pp. 225-342.

144
G.R. No. 202242, July 17, 201 2, 676 SCRA 579.

145
Webster's Third International Dictionary, 1993 Edition, p. 469.

146
Black's Law Dictionary, Fifth Edition, p. 262.

147
G.R. No. 182836, October 13, 2009, 618 Phil. 634 (2009).

Gonzales v. Carhart (Nos. 05-380 and 05-1382), No. 05- 380, 413 F. 3d 791 ; 05- 1382,
148

435 F. 3d 1163,

149
http: //www.law.comell.edu/supct/html/05-380.ZO.html, last visited February 15, 2014.

150
Record of the Constitutional Commission, Volume 4, September 16, 1986, p. 668.

151
Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 596.

152
Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 669.

153
Record of the Constitutional Commission, Volume 4, September 19, 1986, p. 800.

154
Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711 .

155
Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711.
156
Record of the Constitutional Commission, Volume 4 , September 17, 1986, p. 745 .

157
TSN, July 9, 2013 , pp. 23-24.

158
Id.

159
4th Edition, p. 375

160
Id, p. 609

Sumpaico, Gutierrez, Luna, Pareja, Ramos and Baja-Panlilio, 2"d Edition, (2002), pp. 76-
161

77.

162
Moore, Persaud, Torchia, The Developing Human: Clinically Oriented Embryo logy,
International Edition, 9th Edition (2013), pp. 1-5, 13.

O'Rahilly, Ronan and Muller, Fabiola, Huma n Embryo logy & Teratology. 2nd edition. New
163

York: Wiley-Liss, 1996, pp. 8, 29, cited at: http://www.princeton.edu/-


prolife/articles/embryoguotes2.html, last visited February 15, 2014.

From https://www.philippinemedicalassociation .org/downloads/circular-forms/ Position-


164

Paper-on-the-Republic-Health-Bill-%28Responsible-Parenthood-Bill%29.pdf. last visited


March 26, 2014.

165
Comment-In-Intervention, Lagman, rol/o, (G.R. No. 204819), pp. 225-342.

166
Id.

167
Id.

See <http://americanpregnancy.org/duringpregnancy/ fetaldevelopment I .htm>, last visited


168

April 7, 2014.

Joint Memorandum of the House of Representatives and Respondent- Intervenor Rep.


169

Edee I C. Lagman), Section 40, Rollo, G.R. No. 2048 19, p. 2343.

170
Concurring Opinion (Justice Carpio), p. 3.

171
See TSN, July 9, 2013, p. 100.

172
Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p. 25.

173
Section 3.01 For purposes ofthese Rules, the terms shall be defin ed as fo llows:

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 fertil ized
ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Admini stration (F DA) .

xxxx
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
fam ily 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) .

174
Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p. 25
.

175
Separate Opinion (Justice Del Castillo), p. 19 .

176
Petition, Alliance for the Family Foundation, Inc. (A LFI} v. Ochoa, rollo (G. R. No.
204934), pp. 26-28; Petition, Serve l ife Cagayan De Oro City, Inc. v. Ochoa, rolfo, (G. R. No
. 204988), pp. 15-16; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 13- 14;
Petition, Pro-life Philippines Foundation, Inc. v. Ochoa, rolfo (G.R. No. 205 720), pp. 30-35.

Memorandum, Alliance for the Family Foundation, rollo, (G.R. No . 204934), pp. 1419-
177

1445.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
178

defined as follows:

xxxx

(p) Reproductive Health (RH) refers to the state of complete physical, mental and
social well-being and not merely the absence of disease or infirmity, in all matters
relating to the reproductive system and to its functions and processes. This implies
that people are able to have a responsible, safe, consensual and satisfying sex life,
that they have the capability to reproduce and the freedom to decide if, when , and
how often to do so. This further implies that women and men attain equal
relationships in matters related to sexual relations and reproduction.

Section 4. Definition of Terms . - For the purpose of this Act, the following terms shall be
179

defined as follows:

xxxx

(w) Sexual health refers to a state of physical, mental and social well-being in relation
to sexuality. It requires a positive and respectful approach to sexuality and sexual
relationships, as well as the possibility of having pleasurable and safe sexual
experiences, free from coercion, discrimination and violence.

Me morandum, Alcantara, rollo, (G.R. No. 204934)p. 2136; Memorandum , PAX, rollo
180

(G.R. No. 205 138), pp. 2154-2155.

181
Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 415-416.

Gamboa v. Finance Secretary, G.R. No. 176579, June 28, 2011 , 6 52 SCRA 690, 738-
182

739.

183
335 Phil. 82 ( 1997).
Memorandum , Alliance for the Family Foundation, In c. (ALFI) v. Ochoa, rol/o (G.R. No.
184

204934), p. 1408.

185
Id.

186
Memorandum, Lagman, rollo (G.R. No. 204819), pp. 2359-2361.

187
Separate Opinion (Justice Leonardo-De Castro) p. 54.

Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G. R. No. 205138), pp.
188

40-41.

Petition, Task Force/or the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
189

204957), pp. 26-27; Petition, Philippine Alliance of XSem inarians (PAX) v. Ochoa, rollo
(G.R. No. 205138), pp. 39-44; Petition, Tatadv. Office of the President, rollo (G.R. No.
205491), pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No.
205720), pp . 59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the President,
rollo (G.R. No. 2063 55), pp. 25-26.

190
Joint Memorandum, lmbong/Luat, rollo (G.R. No. 204819), p. 2615.

191
Joint Memorandum, Imbong/Luat, rollo (G.R. No. 204819), pp . 2616-2621.

192
Petition, Echavez v. Ochoa, rollo (GR. No. 205478), pp. 6-7.

193
Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-23.

194
Petition, Coup les for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207 I 72), pp. 20-23.

Petition, Alliance for the Family Foundation, Inc. (A LFI) v. Ochoa, rollo (G.R. No. 204934),
195

pp. 35-37.; Petition, Millennium Saint Foundation, In c. v. Office of the President, rollo (G.R.
No. 206355), pp. 17- 18.

Memorandum, Cayetano, rollo (G.R. No. 204819), p. 3050; Comment-in-Lntervention,


196

Cabral, rollo (G.R. No. 2 04819), p. 5 11.

197
Memorandum, OSG, rollo (G. R. No. 204819), p. 2677.

198
Memorandum, Cayetano, rollo (G.R. No. 2048 19), p. 3050.

199
Joint Memorandum Lagman, rol!o (G.R. No. 2048 19), p. 2361.

Memorandum . C4RH, rollo (G.R. No. 204819), p. 2189; Memorandum, Cayetano, rollo
200

(G.R. No. 204819), p. 3050-305 1.

201
Memorandum, Cayetano, rollo (G.R. No. 204 819), p. 3050 .

202
Memorandum, OSG, rollo (G.R. No. 204819), p. 2677.

203
Memorandum, OSG, rollo (G.R. No. 204819), p . 2679.
204
Memorandum, OSG, rollo (G.R. No. 204819), p. 2679.

Cruz, Philippine Political Law, 2000 ed ., p. 179, citing Justice Laurel in Engel v. Vitale,
205

370 US 421.

206
Gorospe, Constitutional Law, Vol. I, p. I 007

207
Bernas, The 1987 Constitution, 2009 Ed. , p. 330

208
Gorospe, Constitutional Law, Vol. I, p. I 066

209
59 SC RA 54 (1974).

210
Escritor v. Estrada, A.M. No. P-02-1651 , June 22, 2006, 525 Phil. 110, 140- 141 (2006).

211
106 Phil. 2 (1959).

212
Gerona v. Secretary of Education, 106 Phil. 2, 9- 10 ( 1959).

213
Ebralinag v. Division Superintendent of Schools, 219 SCRA 25 6 ( 1993 ), March 1, 1993.

214
525 Phil. 110 (2006).

215
Id. at 137.

216
Id. at 148.

217
Id . at 149.

218
Id. at 175.

219
Id. at 168- 169.

220
Estrada v. Escritor, 455 Phil. 4 11 , 560 (2003).

221
Cruz, Constitutional Law, 2000 edition, pp. 178-1 79.

222
Bernas, The 1987 Constitution, 2009 Ed. , p. 330.

223
Separate Opinion, Cruz, Ebralinag v. Division Superintendent of Schools, 219 SCRA 25 6
( 1993 ), March 1, 1993.

224
Estrada v. Escritor, supra note 220, at 537.

225
20 130 CSIH 36.

http://www. skepticink.com/tippling/201 3/05/0 5/conscientious-objection-to-abortion -


226

cathoIic-midwives-win-appeal/; last visited February 22, 2014


http://ukhumanrightsblog.com/20 13/05/03/conscientious-objection-to-abortion-catholic-
227

midwives-win-appeal; last visited February 22 , 2014

228
453 Phil. 440 (2003).

Fernando on the Philippine Constitution, 1974 ed. , p. 565; See Dissenting Opinion
229

Makasiar, Garcia v. The Faculty Admission Committee G. R. No. L-40779, November 28,
1975.

230
TSN , August 13, 201 3, pp. 52-54.

231
TSN, August27, 201 3, pp. 71-72

232
Islamic Da'wah Council of the Philippines v. Office of the Executive Secretary of the Office
of the President of the Philippines, supra note 228 at 450.

http://fatherbemasblogs. blogspot.com/2011 _02_0 !_archive.html ; last vi sited February


233

15, 2014.

234
Estrada v. Escritor, supra note 210.

235
TSN , Aug ust 27 , 201 3, p. 130.

236
http ://www. lifenews.com/2011 /09/01 /philippines-sees-matemal-mortalitv-decline-
without-abortion; last visited March 9, 2014 [Researchers from the Institute for Health Metrics
and Evaluation of the University of Washington in Seattle examined maternal mortality rates
in 181 countries and found the rate (the number of women's deaths per 100,000) dropped by
81 percent in the Philippines between .1980 and 2008. The decrease comes as the largely
Catholic nation has resister efforts to legalize abortions, even though the United Nations and
pro-abortion groups claim women will supposedly die in illegal abortions and increase the
maternal mortality rate if abortion is prohibited.

The 2010 study, published in Lancet, shows the Philippines outpaced first-world
nations like Germany, Russia and Israel - where abortions are legal - in cutting
maternal mortality rates.

Meanwhile, the National Statistical Coordination Board in the Philippines, according


to Spero Forum, has shown the same results. From 1990-2010, the daily maternal
mortality rate dropped 21 percent, its figures indicated. The World Health
Organization also found that the Filipino maternal mortality rate dropped 48 percent
from 1990 to 2008.

237
TSN, July 23, 2013 , p. 23.

Memorandum, Alliance for the Family Foundation, Inc. {ALFI) v. Ochoa, rollo (G.R. No.
238

204934), p. 1407.

SEC. 15. Certificate of Compliance. - No marriage license shall be issued by the Local
239

Civil Registrar unless the applicants present a Certificate of Compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate instructions
and information on responsible parenthood, family planning, breastfeeding and infant
nutrition.

240
Petition, Couples for Christ Foundation, In c. v. Ochoa, rollo (G.R. No. 207 172), p. 29.

241
80 CONST. Art XV, §2 .

242
Separate Opinion (Justice Leonardo-De Castro), p. 42-43.

243
130 Phil. 415 (1968).

244
Id . at 436.

245
81 Griswold v. Connecticut,3 81U.S. 479, June7, 1965.

246
Id.

247
Section 12, Article II , 1987 Constitution.

248
Bernas, The 1987 Constitution, 2009 Ed., p . 85.

249
(ii) Parental consent or that of the person exercising parental authority in the case of
abused minors, where the parent or the person exercising parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial office
of the court. 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 and in no case shall consent be required in emergency or
serious cases as defined in Republic Act No. 8344.

250
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 15- 16.

Memorandum, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G. R. No.
251

204934), pp. 1453- 1496.

252
Records, 1986 Constitutional Convention, Volume IV, pp. 401-402 .

253
Article II , Section 13, 1987 Constitution.

Petition, Task Force for the Family and life Visayas, Inc. v. Ochoa, rollo (G. R. No.
254

204957), pp. 24-25.

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.


255

178552, October 5, 2010; People v. Nazario, No. L-44 143, August 3 1, 1988, 165 SCRA
186, 195.

Philippine International Trading Corporation v. COA, G.R. No. 1835 17, June 22, 2010,
256

621 SC RA 461, 469.

257
Webster's Third New International Dictionary, 1993 Edition, p. 1145 .
258
Webster's Third New International Dictionary, 1993 Edition, p. 1252.

SEC. 3. Guiding Principles for Implementation. - Th is Act declares the following as guiding
259

principles:

xxxx

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-
abortifacient, effective and quality reproductive health care services and supplies is
essential in the promotion of people's right to health, especially those of women, the
poor, and the marginalized, and shall be incorporated as a component of basic
health care;

(e) The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modem methods which
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
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide fun ding support to
promote modern natural methods of family planning, especially the Billings Ovulation
Method, consistent with the needs of acceptors and the irreligious convictions;

(f) The State shall promote programs that: (I) enable individuals and couples to have
the number of children they desire with due consideration to the health, particularly of
women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions: Provided, That no one
shall be deprived, for economic reasons, of the rights to have children; (2) achieve
equitable allocation and utilization of resources; (3) ensure effective partnership
among national government, local government units (LGUs) and the private sector in
the design, implementation, coordination, integration, monitoring and evaluation of
people-centered programs to enhance the quality of life and environmental
protection; (4) conduct studies to analyze demographic trends including demographic
dividends from sound population policies towards sustainable human development in
keeping with the principles of gender equality, protection of mothers and children,
born and unborn and the promotion and protection of women's reproductive rights
and health ; and (5) conduct scientific studies to determine the safety and efficacy of
alternative medicines and methods for reproductive health care development;

xxxx

(g) The provision of reproductive health care, information and supplies giving priority
to poor beneficiaries as identified through the NHTS-PR and other government
measures of identifying marginalization must be the primary responsibility of the
national government consistent with its obligation to respect, protect and promote the
right to health and the right to life;

xxxx

(i) Active participation by nongovernment organizations (NGOs), women's and


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 women,
the poor, and the marginalized;

xxxx

(l) There shall be no demographic or population targets and the mitigation, promotion
and/or stabilization of the population growth rate is incidental to the advancement of
reproductive health ;

xxxx

(n) The resources of the country must be made to serve the entire population, espec
ially the poor, and allocations thereof must be adequate and effective: Provided, That
the life of the unborn is protected;

(o) Development is a multi-faceted process that calls for the harmonization and
integration of policies, plans, programs and projects that seek to uplift the quality of
life of the people, more particularly the poor, the needy and the marginalized;

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
260

defined as follows:

xxxx

(r) Reproductive health care program refers to the systematic and integrated
provision of reproductive health care to all citizens prioritizing women, the poor,
marginalized and those invulnerable or crisis situations.

xxxx

(aa) Sustainable human development refers to bringing people, particularly the poor
and vulnerable, to the center of development process, the central purpose of which is
the creation of an enabling environment in which all can enjoy long, healthy and
productive lives, done in the manner that promotes their rights and protects the life
opportunities of future generation s and the natural ecosystem on which all life
depends.

261
Biraogo v. Th e Philippine Truth Commission, supra note 90.

Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G. R. No. 204988), pp. 16-
262

48; Petition, Echavez v. Ochoa, rollo (G. R. No. 205478), pp. 7-9.

263
Except the practice of law which is under the supervision of the Supreme Court.

264
United States v. Jesus, 3 1 Phil. 218, 230 (1915).

265
Petition , Echavez v. Ochoa, rollo (G. R. N o. 205478), p. 8.

With reference to Section 2 , 3(E), 4(L), 9 and I 9(C) of the RH La w; Petition, ALFI, rollo
266

(G.R. No. 204934), pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa,
rollo (G.R. No. 205138), pp. 37-38.
267
358 Phil. 410 (1998) .

Pimentel, Jr. v. Executive Secretary, G.R. No. 195770, July 17, 201 2, 676 SCRA 551,
268

559.

269
Id . at 559-560.

270
Id. at 561.

271
See Section 6, R.A. No. 10354.

272
See Section 5, R.A . No. 10354.

273
See Section 16, R.A . No. 1354.

Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011, 659 SCRA 270,
274

306.

275
Id. at 305.

276
Petition, Pro-life Philippines Foundation, Inc. v. Ochoa, rollo (GR. N o. 205 720), pp. 14-30.

277
Gettel , Political Science, Revised Edition, p. 180.

278
454 Phil. 504 (2003).

Separate Opinion, Chief Justice Reynato S. Puno, Republic v. Sandiganbayan, 454 Phi l.
279

504 (2003).

280
https://www.cia.gov/ library/ publications/the-world-factbook/rankorder/2127rank.html ; last
visited March 21, 2014

St. Josephs College v. St. Josephs College Workers' Association (Samahan), 489 Phil.
281

559, 572-573 (2005) ; and Cebu Institute of Technology v. Opie, G.R. No. L-58870, 18
December 1987, 156 SCRA 629.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 191618 November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner,


vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

DECISION

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that
questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progeny of Section 4,2Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget
allocation, a seal, a set of personnel and confidential employees, to effect the constitutional
mandate. Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the
Presidential Electoral Tribunal (2005 PET Rules),3specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the
Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET,
may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision
does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the
constitution of the PET, with the designation of the Members of the Court as Chairman and Members
thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of
Members of the Supreme Court and of other courts established by law to any agency performing
quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment5thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is
unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of
the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS


UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE
VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS


OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A
VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance
of the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4,
Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section
12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of the
PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII
and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;


3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the
case itself.8

On more than one occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long
settled on the test laid down in Baker v. Carr:10 "whether the party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
questions."11 Until and unless such actual or threatened injury is established, the complainant is not
clothed with legal personality to raise the constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer."

xxxx

However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United States Supreme Court laid down the more stringent "direct injury" test in
Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved
to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding
its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.

xxxx
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized
interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the
petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds and
the issue raised herein is of transcendental importance, it is petitioner’s humble submission that, as
a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the
petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-
Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the
Presidential Electoral Tribunal,13because judicial inquiry, as mentioned above, requires that the
constitutional question be raised at the earliest possible opportunity.14 Such appearance as counsel
before the Tribunal, to our mind, would have been the first opportunity to challenge the
constitutionality of the Tribunal’s constitution.

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had
ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a
seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the
Tribunal’s authority over the case he was defending, translates to the clear absence of an
indispensable requisite for the proper invocation of this Court’s power of judicial review. Even on this
score alone, the petition ought to be dismissed outright.

Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion
to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the
auspicious case of Tecson v. Commission on Elections.15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions
of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez
petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:

"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice President and may promulgate its rules for the
purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after
the election and proclamation of a President or Vice President. There can be no "contest" before a
winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of
Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions
should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to
entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET)
and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically
and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all
contests relating to the election, returns, and qualifications" of the President and Vice-President,
Senators, and Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate has already
been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral
Tribunal provide that, for President or Vice-President, election protest or quo warranto may be
filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot
claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the
Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework
affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction
to decide presidential and vice-presidential election protests while concurrently acting as an
independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does
not authorize the constitution of the PET. And although he concedes that the Supreme Court may
promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is
unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for
the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly
stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to
promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive.
Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of
constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in
J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:23

It is a well-established rule in constitutional construction that no one provision of the Constitution is


to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the PET.
But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations
which, though unacceptable to petitioner, do not include his restrictive view – one which really does
not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other
related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the
Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework of
judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme
Court’s constitutional mandate to act as sole judge of election contests involving our country’s
highest public officials, and its rule-making authority in connection therewith, is not restricted; it
includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly
provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and
"[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by
actual division but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed
out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from
the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution
is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the
Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of
presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we
find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc.
This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while
acting as sole judge of all contests relating to the election, returns and qualifications of the President
or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with
respect to its internal procedure is already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this is to indicate the sole power of the
Supreme Court without intervention by the legislature in the promulgation of its rules on this
particular point, I think I will personally recommend its acceptance to the Committee.26

xxxx

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an
Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership
from both Houses. But my question is: It seems to me that the committee report does not indicate
which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission
on Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body
distinct and independent already from the House, and so with the Commission on Appointments
also. It will have the authority to promulgate its own rules.27

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests
relating to the election returns and qualifications of the President or Vice-President is purely a
political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted
provision not impinge on the doctrine of separation of powers between the executive and the judicial
departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to
the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic
Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore,
they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an
electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that
cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that
in that election, Lopez was declared winner. He filed a protest before the Supreme Court because
there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal.
The question in this case was whether new powers could be given the Supreme Court by law. In
effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the
answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but
precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution.
Congress may allocate various jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became
necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what
was statutory but it is not an infringement on the separation of powers because the power being
given to the Supreme Court is a judicial power.31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not
as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who
proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without intervention by the legislative department.
Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-
presidential election contests and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the
PET in our country cannot be denied.32
Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the
present Constitution did not contain similar provisions and instead vested upon the legislature all
phases of presidential and vice-presidential elections – from the canvassing of election returns, to
the proclamation of the president-elect and the vice-president elect, and even the determination, by
ordinary legislation, of whether such proclamations may be contested. Unless the legislature
enacted a law creating an institution that would hear election contests in the Presidential and Vice-
Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for
the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively,
presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a
similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of
such tribunal was left to the determination of the National Assembly. The journal of the 1935
Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision
with respect to the entity or body which will look into the protests for the positions of the President
and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that.33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing
an independent PET to try, hear, and decide protests contesting the election of President and Vice-
President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as
its Chairman and Members, respectively. Its composition was extended to retired Supreme Court
Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill,
absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings.
It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized
to exercise powers similar to those conferred upon courts of justice, including the issuance of
subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of
documents and other evidence, and the power to punish contemptuous acts and bearings. The
tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient
performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the
bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary
government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not
directly chosen by the people but elected from among the members of the National Assembly, while
the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power was
restored to the President who was elected directly by the people. An Executive Committee was
formed to assist the President in the performance of his functions and duties. Eventually, the
Executive Committee was abolished and the Office of Vice-President was installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December 3,
1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of
the Supreme Court and two Associate Justices designated by him, while the six were divided equally
between representatives of the majority and minority parties in the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to
recommend the prosecution of persons, whether public officers or private individuals, who in its
opinion had participated in any irregularity connected with the canvassing and/or accomplishing of
election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the
national treasury or Special Activities Fund for its operational expenses. It was empowered to
appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly
employees of the judiciary or other officers of the government who were merely designated to the
tribunal.

After the historic People Power Revolution that ended the martial law era and installed Corazon
Aquino as President, civil liberties were restored and a new constitution was formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to


constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.34

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and
"Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint
personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his
claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the
Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4,
Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The
following exchange in the 1986 Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc
as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme
Court was able to dispose of each case in a period of one year as provided by law. Of course, that
was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court
would react to such circumstances, but there is also the question of who else would hear the election
protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules
provided for the hearings and there is not time limit or duration for the election contest to be decided
by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793,
which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least
three famous election contests were presented and two of them ended up in withdrawal by the
protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring
to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen"
former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the
late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of
Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to
have a decision adverse to him. The votes were being counted already, and he did not get what he
expected so rather than have a decision adverse to his protest, he withdrew the case.

xxxx

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme
Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as contests in
other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en
banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before
teams of three, generally, a representative each of the court, of the protestant and of the "protestee."
It is all a questions of how many teams are organized. Of course, that can be expensive, but it would
be expensive whatever court one would choose. There were times that the Supreme Court, with
sometimes 50 teams at the same time working, would classify the objections, the kind of problems,
and the court would only go over the objected votes on which the parties could not agree. So it is not
as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of
the revision of the ballots because each party would have to appoint one representative for every
team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what
would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET,
to undertake the Herculean task of deciding election protests involving presidential and vice-
presidential candidates in accordance with the process outlined by former Chief Justice Roberto
Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the
additional duty may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies the budget
allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary
implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of
power to the Supreme Court, given our abundant experience, is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court
exercises this authority is not specified in the provision, the grant of power does not contain any
limitation on the Supreme Court’s exercise thereof. The Supreme Court’s method of deciding
presidential and vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the
subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the
Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal
(HRET),37 which we have affirmed on numerous occasions.38

Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of
the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral
tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of
the three departments of government – Executive, Legislative, and Judiciary – but not separate
therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal,
either of the House or of the Senate, is it correct to say that these tribunals are constitutional
creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which
are created by mandate of the Constitution but they are not constitutional creations. Is that a good
distinction?

xxxx

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House
Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil.
192, will still be applicable to the present bodies we are creating since it ruled that the electoral
tribunals are not separate departments of the government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our
holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of
all contests relating to the election, returns, and qualifications of the president-elect and the vice-
president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the election of the
President-elect of Vice-President-elect and to demand a recount of the votes case for the office
involved in the litigation, as well as to secure a judgment declaring that he is the one elected
president or vice-president, as the case may be, and that, as such, he is entitled to assume the
duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall
be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation
has conferred upon such Court an additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be
likened to the fact that courts of first instance perform the functions of such ordinary courts of first
instance, those of court of land registration, those of probate courts, and those of courts of juvenile
and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of
a provincial capital exercises its authority, pursuant to law, over a limited number of cases which
were previously within the exclusive jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one, although the
functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the
exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate
from, those of the same court acting as a court of land registration or a probate court, or as a court of
juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital,
when acting as such municipal court, is, territorially more limited than that of the same court when
hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance.
In other words, there is only one court, although it may perform the functions pertaining to several
types of courts, each having some characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original
jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts
and, appellate courts, without detracting from the fact that there is only one Supreme Court, one
Court of Appeals, and one court of first instance, clothed with authority to discharge said dual
functions. A court of first instance, when performing the functions of a probate court or a court of
land registration, or a court of juvenile and domestic relations, although with powers less broad than
those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot
be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court,
since it is the same Court although the functions peculiar to said Tribunal are more limited in scope
than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of
Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment
vested by the Constitution in the President. It merely connotes the imposition of additional duties
upon the Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it
has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully
defies – the constitutional directive. The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the
Tribunal’s functions as a special electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law relative to
the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, also in the exercise of quasi-judicial power."
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution
reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power "shall be vested in one Supreme Court and in such lower courts as may be
established by law." Consistent with our presidential system of government, the function of "dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the
1987 Constitution, judicial power was expanded to include "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."45 The power was
expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power. 1av v phi 1

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial –
exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives
and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although
not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in
essence, an exercise of judicial power, because of the explicit constitutional empowerment found in
Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House
Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET
decide election contests, their decisions are still subject to judicial review – via a petition for certiorari
filed by the proper party – if there is a showing that the decision was rendered with grave abuse of
discretion tantamount to lack or excess of jurisdiction.46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark case of
Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the
powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded
definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latter’s exercise of judicial power inherent in all courts,48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof. The
power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII.
Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution
which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in
Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same
prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court
were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court.
McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity."
The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned
by the Constitutional Commissioners during the discussions on the grant of power to this Court, is
the PET. Thus, a microscopic view, like the petitioner’s, should not constrict an absolute and
constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we reiterate
a word of caution against the filing of baseless petitions which only clog the Court’s docket. The
petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA


Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO MORALES


Associate Justice Associate Justice

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


Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

(On Official Leave)


LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO*
Associate Justice
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice
Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

*
On official leave.

1
Rollo, pp. 3-9.

2
Paragraph 7.

3
On May 4, 2010, the 2010 Rules of the Presidential Electoral Tribunal (2010 PET Rules)
took effect.

4
465 Phil. 800, 810 (2004).

5
Rollo, pp. 12-38.

6
Id. at 15-16.

7
Id. at 42-58.

8
Cruz, Philippine Political Law, 1998 ed., p. 257.

9
Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel
on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14,
2008, 568 SCRA 402, 456.

10
369 U.S. 186 (1962).

11
Gov. Mandanas v. Hon. Romulo, 473 Phil. 806 (2004).

12
G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424, May 3, 2006,
489 SCRA 160, 216-221. (Citations omitted.)
13
Poe v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005, 454 SCRA 142.

14
Cruz, Philippine Politcal Law, 1998 ed., p. 263.

15
G.R. Nos. 161434, 161634, and 161824, March 3, 2004, 424 SCRA 277, 324-325.
(Emphasis supplied.)

16
Id. at 363.

17
Id. at 431-432.

18
Atty. Macalintal v. COMELEC, 453 Phil. 586 (2003).

19
Supra at note 15.

20
No. L-21064, February 18, 1970, 31 SCRA 413, 423.

21
McCulloch v. State of Maryland, 17 U.S. 316 (Wheat.), 1819.

22
In the Philippine context, see Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896
and 83815, February 22, 1991, 194 SCRA 317.

23
Id. at 330-331.

24
82 Phil. 771, 775 (1949).

25
G.R. No. 88211, September 15, 1989, 177 SCRA 668, 688-689. (Emphasis supplied,
citations omitted.)

26
Records of the Constitutional Commission, Vol. 2, p. 433. (Emphasis supplied.)

27
Id. at 87-88. (Emphasis supplied.)

28
Id. at 420-421. (Emphasis supplied.)

29
Supreme Court.

30
A Roman Catholic Priest of the Jesuit Order.

31
Records of the Constitutional Commission, Vol. 2, pp. 407-408. (Emphasis supplied.)

32
See Defensor-Santiago v. Ramos, P.E.T. Case No. 001, February 13, 1996, 253 SCRA
559; Tecson v. COMELEC, supra at note 15.

33
Constitutional Convention Record, Vol. X, pp. 471-472.

34
Records of the Constitutional Commission, Vol. 2, p. 408.

35
Id. at 420-421. (Emphasis supplied.)
36
McCulloch v. State of Maryland, supra note 21.

37
CONSTITUTION, Art. VI, Sec. 17.

38
Sen. Defensor-Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294 (1998), citing Lazatin v.
House Electoral Tribunal, 250 Phil. 390 (1988); Robles v. House of Representatives
Electoral Tribunal, G.R. No. 86647, February 5, 1990, 181 SCRA 780.

39
Records of the Constitutional Commission, Vol. 2, pp. 111-112. (Emphasis supplied.)

40
Supreme Court.

41
Court of Appeals.

42
No. L-25716, July 28, 1966, 17 SCRA 756, 762-765. (Emphasis supplied.)

43
Supra note 4.

44
Javellana v. Executive Secretary, et al., 151-A Phil. 36, 131 (1973).

45
CONSTITUTION, Art. VIII, Sec. 1, second paragraph.

46
See Robles v. House of Representatives Electoral Tribunal, supra note 38; Lazatin v.
House Electoral Tribunal, supra note 38.

47
63 Phil. 139 (1936).

48
See Ynot v. Intermediate Appellate Court, G.R. No. L-74457, March 20, 1987, 148 SCRA
659, 665; Tañada and Macapagal v. Cuenco, et al., 103 Phil. 1051 (1957); Alejandrino v.
Quezon, 46 Phil. 83 (1924).

49
Supra note 21
EN BANC

[G.R. No. 141284. August 15, 2000.]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.


RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.

Arthur D. Lim for petitioner.

The Solicitor General for respondents.

SYNOPSIS

The President of the Philippines, Joseph Ejercito Estrada, in a verbal directive,


ordered the PNP and the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. In compliance with the presidential
mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay,
formulated Letter of Instruction 02/2000 (the "LOI") which detailed the manner
by which the joint visibility patrols, called Task Force Tulungan, would be
conducted. Task Force Tulungan was placed under the leadership of the Police
Chief of Metro Manila. Invoking his powers as Commander-in-Chief under Section
18, Article VII of the Constitution, the President directed the AFP Chief of Staff
and PNP Chief to coordinate with each other for the proper deployment and
utilization of the Marines to assist the PNP in preventing or suppressing criminal
or lawless violence. The President also declared that the services of the Marines
in the anti-crime campaign are merely temporary in nature and for a reasonable
period only, until such time when the situation shall have improved.
The Integrated Bar of the Philippines (the "IBP") filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines null
and void and unconstitutional, arguing that the deployment of marines in Metro
Manila is violative of the Constitution because no emergency situation obtains in
Metro Manila as would justify, even only remotely, the deployment of soldiers for
law enforcement work; hence, said deployment in derogation of Article II,
Section 3 of the Constitution.

The Supreme Court found no merit in the petition. When the President calls the
armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself.
The Court, thus, cannot be called upon to overrule the President's wisdom or
substitute its own. It does not, however, prevent an examination of whether
such power was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine
the necessity of calling out the armed forces, it is incumbent upon the petitioner
to show that the President's decision is totally bereft of factual basis. The petition
failed to discharge such heavy burden as there was no evidence to support the
assertion that there exists no justification for calling out the armed forces nor
was grave abuse committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of the Court's duty of "purposeful hesitation" before
declaring an act of another branch as unconstitutional, only where such grave
abuse of discretion is clearly shown shall the Court interfere with the President's
judgment and to doubt is to sustain. The Court also ruled that the calling of the
Marines in this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited participation of the Marines is
evident in the provisions of the LOI itself, which sufficiently provides the metes
and bounds of the Marines' authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures. It is their responsibility to direct
and manage the deployment of the Marines. It is, likewise, their duty to provide
the necessary equipment to the Marines and render logistical support to these
soldiers. It cannot be properly argued then that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the
PNP does not unmake the civilian character of the police force. Neither does it
amount to an "insidious incursion" of the military in the task of law enforcement
in violation of Section 5(4), Article XVI of the Constitution.

SYLLABUS

1.POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW;


PETITIONER INTEGRATED BAR OF THE PHILIPPINES HAS NOT COMPLIED WITH
THE REQUISITES OF LEGAL STANDING IN CASE AT BAR; PETITIONER HAS NOT
SUCCESSFULLY ESTABLISHED A DIRECT AND PERSONAL INJURY AS A
CONSEQUENCE OF THE QUESTIONED ACT. — The IBP primarily anchors its
standing on its alleged responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP asserts no other basis
in support of its locus standi. The mere invocation by the IBP of its duty to
preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest
which is shared by other groups and the whole citizenry. Based on the standards
above-stated, the IBP has failed to present a specific and substantial interest in
the resolution of the case. Its fundamental purpose which, under Section 2, Rule
139-A of the Rules of Court, is to elevate the standards of the law profession and
to improve the administration of justice is alien to, and cannot be affected by the
deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a
formal board resolution authorizing him to file the present action. To be sure,
members of the BAR, those in the judiciary included, have varying opinions on
the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has
suffered or may suffer by virtue of the questioned governmental act. Indeed,
none of its members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility patrols. Neither is
it alleged that any of its members has been arrested or that their civil liberties
have been violated by the deployment of the Marines. What the IBP projects as
injurious is the supposed "militarization" of law enforcement which might
threaten Philippine democratic institutions and may cause more harm than good
in the long run. Not only is the presumed "injury" not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully established a direct and personal
injury as a consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines. This Court,
however, does not categorically rule that the IBP has absolutely no standing to
raise constitutional issues now or in the future. The IBP must, by way of
allegations and proof, satisfy this Court that it has sufficient stake to obtain
judicial resolution of the controversy.

2.ID.; EXECUTIVE DEPARTMENT; POWERS OF THE PRESIDENT; THE


PRESIDENT DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN CALLING OUT
THE MARINES. — When the President calls the armed forces to prevent or
suppress lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom. This is clear from the intent of
the framers and from the text of the Constitution itself. The Court, thus, cannot
be called upon to overrule the President's wisdom or substitute its own.
However, this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional
intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion
that there exist no justification for calling out the armed forces. There is,
likewise, no evidence to support the proposition that grave abuse was committed
because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the
performance of this Court's duty of purposeful hesitation" before declaring an act
of another branch as unconstitutional, only where such grave abuse of discretion
is clearly shown shall the Court interfere with the President's judgment. To doubt
is to sustain.

3.ID.; ID.; ID.; GROUNDS FOR THE DECLARATION OF MARTIAL LAW AND
SUSPENSION OF THE WRIT OF HABEAS CORPUS; SAID CONDITIONS ARE NOT
REQUIRED IN THE CASE OF THE POWER OF THE PRESIDENT TO CALL OUT THE
ARMED FORCES. — Under Section 18, Article VII of the Constitution, in the
exercise of the power to suspend the privilege of the writ of habeas corpus or to
impose martial law, two conditions must concur: (1) there must be an actual
invasion or rebellion and, (2) public safety must require it. These conditions are
not required in the case of the power to call out the Armed Forces. The only
criterion is that "whenever it becomes necessary," the President may call the
armed forces "to prevent or suppress lawless violence, invasion or rebellion." The
implication is that the President is given full discretion and wide latitude in the
exercise of the power to call as compared to the two other powers.

4.ID.; ID.; ID.; DETERMINATION OF NECESSITY FOR POWER TO CALL OUT


ARMED FORCES IF SUBJECTED TO UNFETTERED JUDICIAL SCRUTINY COULD
BE A VERITABLE PRESCRIPTION FOR DISASTER, AS SUCH POWER MAY BE
UNDULY STRAITJACKETED BY AN INJUNCTION OR TEMPORARY RESTRAINING
ORDER EVERY TIME IT IS EXERCISED. — The President as Commander-in-Chief
has a vast intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In the
exercise of the power to call, on-the-spot decisions may be imperatively
necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or
suppress lawless violence must be done swiftly and decisively if it were to have
any effect at all. Such a scenario is not farfetched when we consider the present
situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power
if subjected to unfettered judicial scrutiny could be a veritable prescription for
disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised. Thus, it is the unclouded
intent of the Constitution to vest upon the President, as Commander-in-Chief of
the Armed Forces, full discretion to call forth the military when in his judgment it
is necessary to do so in order to prevent or suppress lawless violence, invasion
or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President's exercise of judgment deserves to be
accorded respect from this Court.

5.ID.; ID.; ID.; THE DEPLOYMENT OF THE MARINES DOES NOT VIOLATE THE
CIVILIAN SUPREMACY CLAUSE NOR DOES IT INFRINGE THE CIVILIAN
CHARACTER OF THE POLICE FORCE. — The deployment of the Marines does not
constitute a breach of the civilian supremacy clause. The calling of the Marines in
this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited participation of the Marines is
evident in the provisions of the LOI itself, which sufficiently provides the metes
and bounds of the Marines' authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader
of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures. It is
their responsibility to direct and manage the deployment of the Marines. It is,
likewise, their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers. In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority.

VITUG, J., separate opinion:

POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; THE


ACT OF THE PRESIDENT IN SIMPLY CALLING ON THE ARMED FORCES, AN
EXECUTIVE PREROGATIVE, TO ASSIST THE PHILIPPINE NATIONAL POLICE IN
"JOINT VISIBILITY PATROLS" DOES NOT CONSTITUTE GRAVE ABUSE OF
DISCRETION THAT WOULD WARRANT AN EXERCISE BY THE COURT OF ITS
EXTRAORDINARY POWER OF JUDICIAL REVIEW. — The term grave abuse of
discretion is long understood in our jurisprudence as being, and confined to, a
capricious and whimsical or despotic exercise of judgment amounting to lack or
excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by
litigants in the duel of views, the act of the President in simply calling on the
Armed Forces of the Philippines, an executive prerogative, to assist the Philippine
National Police in "joint visibility patrols" in the metropolis does not, I believe,
constitute grave abuse of discretion that would now warrant an exercise by the
Supreme Court of its extraordinary power as so envisioned by the fundamental
law.HSTAcI

PUNO, J., separate opinion:

1.POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW;


CONDITIONS THAT MUST BE MET BEFORE THE PRESIDENT, AS COMMANDER-
IN-CHIEF, MAY CALL OUT THE ARMED FORCES OF THE PHILIPPINES; SAID
CONDITIONS DEFINE THE PARAMETERS OF THE CALLING OUT POWER AND
WHETHER OR NOT THERE IS COMPLIANCE WITH THE SAID PARAMETERS IS A
JUSTIFIABLE ISSUE AND NOT A POLITICAL QUESTION. — It is clear from
Section 18, Article VII of the 1987 Constitution that the President, as
Commander-in-Chief of the armed forces of the Philippines, may call out the
armed forces subject to two conditions: (1) whenever it becomes necessary; and
(2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably,
these conditions lay down the sine qua requirement for the exercise of the power
and the objective sought to be attained by the exercise of the power. They
define the constitutional parameters of the calling out power. Whether or not
there is compliance with these parameters is a justiciable issue and is not a
political question. I am not unaware that in the deliberations of the Constitutional
Commission, Commissioner Bernas opined that the President's exercise of the
"calling out power," unlike the suspension of the privilege of the writ of habeas
corpus and the declaration of martial law, is not a justiciable issue but a political
question and therefore not subject to judicial review. It must be borne in mind,
however, that while a member's opinion expressed on the floor of the
Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent. The proceedings of the Convention are less conclusive on the
proper construction of the fundamental law than are legislative proceedings of
the proper construction of a statute, for in the latter case it is the intent of the
legislature the courts seek, while in the former, courts seek to arrive at the intent
of the people through the discussions and deliberations of their representatives.
The conventional wisdom is that the Constitution does not derive its force from
the convention which framed it, but from the people who ratified it, the intent to
be arrived at is that of the people.

2.ID.; ID.; ID.; IT MAY BE CONCEDED THAT THE EXERCISE OF THE CALLING
OUT POWER MAY BE A "LESSER POWER" COMPARED TO THE POWER TO
SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS AND THE POWER
TO DECLARE MARTIAL LAW, STILL ITS EXERCISE CANNOT BE LEFT TO
ABSOLUTE DISCRETION OF THE CHIEF EXECUTIVE, AS COMMANDER-IN-CHIEF
OF THE ARMED FORCES, AS ITS IMPACT ON THE RIGHTS OF THE PEOPLE
PROTECTED BY THE CONSTITUTION CANNOT BE DOWNGRADED. — It is true
that the third paragraph of Section 18, Article VII of the 1987 Constitution
expressly gives the Court the power to review the sufficiency of the factual bases
used by the President in the suspension of the privilege of the writ of habeas
corpus and the declaration of martial law. It does not follow, however, that just
because the same provision did not grant to this Court the power to review the
exercise of the calling out power by the President, ergo, this Court cannot pass
upon the validity of its exercise. Given the light of our constitutional history, this
express grant of power merely means that the Court cannot decline the exercise
of its power because of the political question doctrine as it did in the past. In
fine, the express grant simply stresses the mandatory duty of this Court to check
the exercise of the commander-in-chief powers of the President. It eliminated
the discretion of the Court not to wield its power of review thru the use of the
political question doctrine. It may be conceded that the calling out power may be
a "lesser power" compared to the power to suspend the privilege of the writ
of habeas corpus and the power to declare martial law. Even then, its exercise
cannot be left to the absolute discretion of the Chief Executive as Commander-in-
Chief of the armed forces, as its impact on the rights of our people protected by
the Constitution cannot be downgraded. We cannot hold that acts of the
commander-in-chief cannot be reviewed on the ground that they have lesser
impact on the civil and political rights of our people. The exercise of the calling
out power may be "benign" in the case at bar but may not be so in future
cases. THaCAI

MENDOZA, J., concurring and dissenting:

1.POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW;


JUDGMENT ON THE SUBSTANTIAL ISSUES RAISED BY PETITIONER MUST
AWAIT AN ACTUAL CASE INVOLVING REAL PARTIES WITH "INJURIES" TO
SHOW AS A RESULT OF THE OPERATION OF THE CHALLENGED EXECUTIVE
DECISION. — I submit that judgment on the substantive constitutional issues
raised by petitioner must await an actual case involving real parties with
"injuries" to show as a result of the operation of the challenged executive action.
While as an organization for the advancement of the rule of law petitioner has an
interest in upholding the Constitution, its interest is indistinguishable from the
interest of the rest of the citizenry and falls short of that which is necessary to
give petitioner standing. As I have indicated elsewhere, a citizens' suit
challenging the constitutionality of governmental action requires that (1) the
petitioner must have suffered an "injury in fact" of an actual or imminent nature;
(2) there must be a causal connection between the injury and the conduct
complained of; and (3) the injury is likely to be redressed by a favorable action
by this Court. The "injury in fact" test requires more than injury to a cognizable
interest. It requires that the party seeking review be himself among those
injured. My insistence on compliance with the standing requirement is grounded
in the conviction that only a party injured by the operation of the governmental
action challenged is in the best position to aid the Court in determining the
precise nature of the problem presented. Many a time we have adverted to the
power of judicial review as an awesome power not to be exercised save in the
most exigent situation. For, indeed, sound judgment on momentous
constitutional questions is not likely to be reached unless it is the result of a
clash of adversary arguments which only parties with direct and specific interest
in the outcome of the controversy can make. This is true not only when we strike
down a law or official action but also when we uphold it. ESTDIA

2.ID.; ID.; ID.; ID.; NO EVIDENCE ON THE EFFECT OF MILITARY PRESENCE IN


MALLS AND COMMERCIAL CENTERS, I.E., WHETHER SUCH PRESENCE IS
COERCIVE OR BENIGN. — In this case, because of the absence of parties with
real and substantial interest to protect, we do not have evidence on the effect of
military presence in malls and commercial centers, i.e., whether such presence is
coercive or benign. We do not know whether the presence of so many marines
and policemen scares shoppers, tourists, and peaceful civilians, or whether it is
reassuring to them. To be sure, the deployment of troops to such places is not
like parading them at the Luneta on Independence Day. Neither is it, however,
like calling them out because of actual fighting or the outbreak of violence. We
need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless
violence, invasion or rebellion is subject to the limitation that the exercise of this
power is required in the interest of public safety.

DECISION

KAPUNAN, J : p

At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullity on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the Philippine National
Police (the "PNP") in visibility patrols around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like robberies,
kidnappings and carnappings, the President, in a verbal directive, ordered the
PNP and the Marines to conduct joint visibility patrols for the purpose of crime
prevention and suppression. The Secretary of National Defense, the Chief of
Staff of the Armed Forces of the Philippines (the "AFP"), the Chief of the PNP and
the Secretary of the Interior and Local Government were tasked to execute and
implement the said order. In compliance with the presidential mandate, the PNP
Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of
Instruction 02/2000 1 (the "LOI") which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be conducted. 2 Task
Force Tulungan was placed under the leadership of the Police Chief of Metro
Manila.

Subsequently, the President confirmed his previous directive on the deployment


of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief
of Staff of the AFP and the PNP Chief. 3 In the Memorandum, the President
expressed his desire to improve the peace and order situation in Metro Manila
through a more effective crime prevention program including increased police
patrols. 4 The President further stated that to heighten police visibility in the
metropolis, augmentation from the AFP is necessary. 5 Invoking his powers as
Commander-in-Chief under Section 18, Article VII of the Constitution, the
President directed the AFP Chief of Staff and PNP Chief to coordinate with each
other for the proper deployment and utilization of the Marines to assist the PNP
in preventing or suppressing criminal or lawless violence. 6 Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the
situation shall have improved. 7

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols
as follows:

xxx xxx xxx

2.PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO
and the Philippine Marines partnership in the conduct of visibility patrols
in Metro Manila for the suppression of crime prevention and other
serious threats to national security.
3.SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by


ordinary criminals but also by organized syndicates whose members
include active and former police/military personnel whose training, skill,
discipline and firepower prove well-above the present capability of the
local police alone to handle. The deployment of a joint PNP NCRPO-
Philippine Marines in the conduct of police visibility patrol in urban areas
will reduce the incidence of crimes specially those perpetrated by active
or former police/military personnel.

4.MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free,
through a sustained street patrolling to minimize or eradicate all forms
of high-profile crimes especially those perpetrated by organized crime
syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.

5.CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a.The visibility patrols shall be conducted jointly by the NCRPO [National


Capital Regional Police Office] and the Philippine Marines to curb
criminality in Metro Manila and to preserve the internal security of the
state against insurgents and other serious threat to national security,
although the primary responsibility over Internal Security Operations still
rests upon the AFP.

b.The principle of integration of efforts shall be applied to eradicate all


forms of high-profile crimes perpetrated by organized crime syndicates
operating in Metro Manila. This concept requires the military and police
to work cohesively and unify efforts to ensure a focused, effective and
holistic approach in addressing crime prevention. Along this line, the role
of the military and police aside from neutralizing crime syndicates is to
bring a wholesome atmosphere wherein delivery of basic services to the
people and development is achieved Hand-in-hand with this joint
NCRPO-Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.

c.To ensure the effective implementation of this project, a provisional


Task Force "TULUNGAN" shall be organized to provide the mechanism,
structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx xxx xxx. 8

The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport. 9

On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS


VIOLATIVE OF THE CONSTITUTION, IN THAT:

A)NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD


JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF
THE CONSTITUTION;

B)SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY


THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5
(4), OF THE CONSTITUTION;

C)SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON


THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE


ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION. 10

Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP in
law enforcement.
Without granting due course to the petition, the Court in a Resolution, 11 dated
25 January 2000, required the Solicitor General to file his Comment on the
petition. On 8 February 2000, the Solicitor General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner
has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that the
organization and conduct of police visibility patrols, which feature the team-up of
one police officer and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the President's factual determination of the
necessity of calling the armed forces is subject to judicial review, and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility
patrols violates the constitutional provisions on civilian supremacy over the
military and the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites


of standing to raise the issues in the petition. Second, the President did not
commit grave abuse of discretion amounting to lack or excess of jurisdiction nor
did he commit a violation of the civilian supremacy clause of the Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise
its power of judicial review only if the following requisites are complied with,
namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case. 12

The IBP has not sufficiently complied with the requisites of standing in this
case.

"Legal standing" or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged. 13 The term
"interest" means a material interest, an interest in issue affected by the decree,
as distinguished from mere interest in the question involved, or a mere incidental
interest. 14 The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. 15

In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing
in this case. This is too general an interest which is shared by other groups and
the whole citizenry. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of
the Marines. It should also be noted that the interest of the National President of
the IBP who signed the petition, is his alone, absent a formal board resolution
authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover,
the IBP, assuming that it has duly authorized the National President to file the
petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of
the operation of the joint visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the supposed
"militarization" of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed "injury" not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of standing. Since petitioner
has not successfully established a direct and personal injury as a consequence of
the questioned act, it does not possess the personality to assail the validity of
the deployment of the Marines. This Court, however, does not categorically rule
that the IBP has absolutely no standing to raise constitutional issues now or in
the future. The IBP must, by way of allegations and proof, satisfy this Court that
it has sufficient stake to obtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of
legal standing when paramount interest is involved. 16 In not a few cases, the
Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the
people. 17 Thus, when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of procedure. 18 In this case, a
reading of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in
the petition almost certainly will not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on standing and to resolve the
issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the
Marines.

In the case at bar, the bone of contention concerns the factual determination of
the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP questions, however, is the
basis for the calling of the Marines under the aforestated provision. According to
the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion
or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court "review the sufficiency of the factual basis for said troop [Marine]
deployment." 19

The Solicitor General, on the other hand, contends that the issue pertaining to
the necessity of calling the armed forces is not proper for judicial scrutiny since it
involves a political question and the resolution of factual issues which are beyond
the review powers of this Court. DTAESI

As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties' formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the
Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare. 20 For
one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In
the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the President's
powers as protector of the peace. [Rossiter, The American Presidency].
The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems
of maintaining peace and order and ensuring domestic tranquility in
times when no foreign foe appears on the horizon. Wide discretion,
within the bounds of law, in fulfilling presidential duties in times of peace
is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the President's exercising as Commander-in-
Chief powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in order
to keep the peace, and maintain public order and security.

xxx xxx xxx 21


Nonetheless, even if it is conceded that the power involved is the President's
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar result.

We now address the Solicitor General's argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and
thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which


is appropriate for court review. 22 It pertains to issues which are inherently
susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of
cases wherein the Court hesitates to rule on are ''political questions." The reason
is that political questions are concerned with issues dependent upon the wisdom,
not the legality, of a particular act or measure being assailed. Moreover, the
political question being a function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal branch unless the case
shows a clear need for the courts to step in to uphold the law and the
Constitution.

As Tañada v. Cuenco, 23 puts it, political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of government." Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be
a political question. In the classic formulation of Justice Brennan in Baker v.
Carr, 24 [p]rominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various
departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that
"[T]he Judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government." 25 Under this definition, the
Court cannot agree with the Solicitor General that the issue involved is a political
question beyond the jurisdiction of this Court to review. When the grant of
power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations
respected, is justiciable — the problem being one of legality or validity, not its
wisdom. 26 Moreover, the jurisdiction to delimit constitutional boundaries has
been given to this Court. 27 When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned. 28

By grave abuse of discretion is meant simply capricious or whimsical exercise of


judgment that is patent and gross as to amount to an evasion of positive duty or
a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. 29 Under this definition, a court
is without power to directly decide matters over which full discretionary authority
has been delegated. But while this Court has no power to substitute its judgment
for that of Congress or of the President, it may look into the question of whether
such exercise has been made in grave abuse of discretion. 30 A showing that
plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may
give rise to justiciable controversy. 31

When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the President's wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the President's decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification
for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Court's duty of
purposeful hesitation" 32 before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall
the Court interfere with the President's judgment. To doubt is to sustain.

There is a clear textual commitment under the Constitution to bestow on the


President full discretionary power to call out the armed forces and to determine
the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-
Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of


the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any
part thereof under martial law.

xxx xxx xxx

The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in the
rest of Section 18, Article VII which reads, thus:

xxx xxx xxx

Within forty-eight hours from the proclamation of martial law or the


suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by


any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days
from its filing.

A state of martial law does not suspend the operation of the


Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation or


suspension and the Court may review the sufficiency of the factual basis thereof.
However, there is no such equivalent provision dealing with the revocation or
review of the President's action to call out the armed forces. The distinction
places the calling out power in a different category from the power to declare
martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together
the three powers and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where the terms are expressly
limited to certain matters, it may not, by interpretation or construction, be
extended to other matters. 33That the intent of the Constitution is exactly what
its letter says, i.e., that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can
call out such Armed Forces as may be necessary to suppress lawless
violence; then he can suspend the privilege of the writ of habeas corpus,
then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend
the privilege of the writ of habeas corpus, his judgment is subject to
review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he exercises
this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by
anybody.

xxx xxx xxx

FR. BERNAS. Let me just add that when we only have imminent danger,
the matter can be handled by the first sentence: "The President . . . may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion." So we feel that that is sufficient for handling
imminent danger. SAHITC

MR. DE LOS REYES. So actually, if a President feels that there is


imminent danger, the matter can be handled by the First Sentence: "The
President . . . may call out such Armed Forces to prevent or suppress
lawless violence, invasion or rebellion." So we feel that that is sufficient
for handling imminent danger, of invasion or rebellion, instead of
imposing martial law or suspending the writ of habeas corpus, he must
necessarily have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the


legislature nor is it subject to judicial review. 34

The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this
Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial
law, two conditions must concur: (1) there must be an actual invasion or
rebellion and, (2) public safety must require it. These conditions are not required
in the case of the power to call out the armed forces. The only criterion is that
"whenever it becomes necessary," the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion." The implication is
that the President is given full discretion and wide latitude in the exercise of the
power to call as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be
of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence


network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property.
Indeed, the decision to call out the military to prevent or suppress lawless
violence must be done swiftly and decisively if it were to have any effect at all.
Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected
to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military
when in his judgment it is necessary to do so in order to prevent or suppress
lawless violence, invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the President's exercise of
judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling
the armed forces. In his Memorandum, he categorically asserted that, [V]iolent
crimes like bank/store robberies, holdups, kidnappings and carnappings continue
to occur in Metro Manila . . ." 35 We do not doubt the veracity of the President's
assessment of the situation, especially in the light of present developments. The
Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These
are among the areas of deployment described in the LOI 2000. Considering all
these facts, we hold that the President has sufficient factual basis to call for
military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause
nor does it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is "militarized" in violation of Section 3, Article
II 36 of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation
of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the metes and bounds of
the Marines' authority. It is noteworthy that the local police forces are the ones
in charge of the visibility patrols at all times, the real authority belonging to the
PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-
Philippine Marines joint visibility patrols. 37 Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures. 38 It is their
responsibility to direct and manage the deployment of the Marines. 39 It is,
likewise, their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers. 40 In view of the foregoing, it cannot
be properly argued that military authority is supreme over civilian authority.

Moreover, the deployment of the Marines to assist the PNP does not unmake the
civilian character of the police force. Neither does it amount to an "insidious
incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution. 41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of
the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision. The
real authority in these operations, as stated in the LOI, is lodged with the head
of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the
same. Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to a civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no "insidious
incursion" of the military in civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various


forms persists in Philippine jurisdiction. The Philippine experience reveals that it
is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally "civil" functions. As correctly pointed out by
the Solicitor General, some of the multifarious activities wherein military aid has
been rendered, exemplifying the activities that bring both the civilian and the
military together in a relationship of cooperation, are:

1.Elections; 42

2.Administration of the Philippine National Red Cross; 43

3.Relief and rescue operations during calamities and disasters; 44

4.Amateur sports promotion and development; 45

5.Development of the culture and the arts; 46

6.Conservation of natural resources; 47

7.Implementation of the agrarian reform program; 48

8.Enforcement of customs laws; 49

9.Composite civilian-military law enforcement activities; 50


10.Conduct of licensure examinations; 51

11.Conduct of nationwide tests for elementary and high school


students; 52

12.Anti-drug enforcement activities; 53

13.Sanitary inspections; 54

14.Conduct of census work; 55

15.Administration of the Civil Aeronautics Board; 56

16.Assistance in installation of weather forecasting devices; 57

17.Peace and order policy formulation in local government units. 58

This unquestionably constitutes a gloss on executive power resulting from a


systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned. 59 What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted, 60 and whose
Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act 61 of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:

§ 1385.Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized


by the Constitution or Act of Congress, willfully uses any part of the
Army or the Air Force as posse comitatus or otherwise to execute the
laws shall be fined not more than $10,000 or imprisoned not more than
two years, or both. 62

To determine whether there is a violation of the Posse Comitatus Act in the use
of military personnel, the US courts 63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which
was regulatory, proscriptive, or compulsory 64 in nature, either presently
or prospectively?

xxx xxx xxx

When this concept is transplanted into the present legal context, we


take it to mean that military involvement, even when not expressly
authorized by the Constitution or a statute, does not violate the Posse
Comitatus Act unless it actually regulates, forbids or compels some
conduct on the part of those claiming relief. A mere threat of some
future injury would be insufficient. (italics supplied)

Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:

3.The designation of tasks in Annex A 65 does not constitute the


exercise of regulatory, proscriptive, or compulsory military power. First,
the soldiers do not control or direct the operation. This is evident from
Nos. 6, 66 8(k) 67 and 9(a) 68 of Annex A. These soldiers, second, also
have no power to prohibit or condemn. In No. 9(d) 69 of Annex A, all
arrested persons are brought to the nearest police stations for proper
disposition. And last, these soldiers apply no coercive force. The
materials or equipment issued to them, as shown in No. 8(c) 70 of
Annex A, are all low impact and defensive in character. The conclusion is
that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law
enforcement. 71

It appears that the present petition is anchored on fear that once the armed
forces are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that — calling out the armed forces. Unless,
petitionerIBP can show, which it has not, that in the deployment of the Marines,
the President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the President's determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000,
not a single citizen has complained that his political or civil rights have been
violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom only
when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-


Santiago, and De Leon, Jr., JJ., concur.

Puno and Vitug, JJ., see separate opinion.

Mendoza, J., see concurring and dissenting opinion.

Quisumbing, J., join in the opinion of J. Mendoza.

Bellosillo, J., on official leave.

Panganiban, J., concurs in the result.

Separate Opinions

PUNO, J.:

If the case at bar is significant, it is because of the government attempt to foist


the political question doctrine to shield an executive act done in the exercise of
the commander-in-chief powers from judicial scrutiny. If the attempt succeeded,
it would have diminished the power of judicial review and weakened the
checking authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights
of our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid
back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting ". . . grave abuse of
jurisdiction . . . on the part of any branch or instrumentality of the
Government." 1

The importance of the issue at bar induces this humble separate opinion. We can
best perceive the different intersecting dimensions of the political question
doctrine by viewing them from the broader canvass of history. Political questions
are defined as "those questions which under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of
government." 2They have two aspects: (1) those matters that are to be
exercised by the people in their primary political capacity and (2) matters which
have been specifically delegated to some other department or particular office of
the government, with discretionary power to act. 3 The exercise of the
discretionary power of the legislative or executive branch of government was
often the area where the Court had to wrestle with the political question
doctrine. 4

A brief review of some of our case law will thus give us a sharper perspective of
the political question doctrine. This question confronted the Court as early as
1905 in the case of Barcelon v. Baker. 5 The Governor-General of the Philippine
Islands, pursuant to a resolution of the Philippine Commission, suspended the
privilege of the writ of habeas corpus in Cavite and Batangas based on a finding
of open insurrection in said provinces. Felix Barcelon, who was detained by
constabulary officers in Batangas, filed a petition for the issuance of a writ
of habeas corpus alleging that there was no open insurrection in Batangas. The
issue to resolve was whether or not the judicial department may investigate the
facts upon which the legislative (the Philippine Commission) and executive (the
Governor-General) branches of government acted in suspending the privilege of
the writ.

The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department. 6 Surveying American law and jurisprudence,
it held that whenever a statute gives discretionary power to any person, to be
exercised by him upon his own opinion of certain facts, the statute constitutes
him the sole judge of the existence of those facts. 7 Since the Philippine Bill of
1902 empowered the Philippine Commission and the Governor-General to
suspend the privilege of the writ of habeas corpus, this power
is exclusively within the discretion of the legislative and executive branches of
government. The exercise of this discretion is conclusive upon the courts. 8 SHCaDA

The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exist, it will
presume that the conditions continue until the same authority decide that they
no longer exist. 9 It adopted the rationale that the executive branch, thru its civil
and military branches, are better situated to obtain information about peace and
order from every corner of the nation, in contrast with the judicial department,
with its very limited machinery. 10 The seed of the political question doctrine was
thus planted in Philippine soil.

The doctrine barring judicial review because of the political question doctrine was
next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members.
In the 1924 case of Alejandrino v. Quezon, 11 Alejandrino, who was appointed
Senator by the Governor-General, was declared by Senate Resolution as guilty of
disorderly conduct for assaulting another Senator in the course of a debate, and
was suspended from office for one year. Senator Alejandrino filed a petition for
mandamus and injunction to compel the Senate to reinstate him. The Court held
that under the Jones Law, the power of the Senate to punish its members for
disorderly behavior does not authorize it to suspend an appointive member from
the exercise of his office. While the Court found that the suspension was illegal,
it refused to issue the writ of mandamus on the ground that "the Supreme Court
does not possess the power of coercion to make the Philippine Senate take any
particular action. [T]he Philippine Legislature or any branch thereof cannot be
directly controlled in the exercise of their legislative powers by any judicial
process." 12

The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino, 13 three senators-elect who had been prevented from taking their oaths
of office by a Senate resolution repaired to this Court to compel their colleagues
to allow them to occupy their seats contending that only the Electoral Tribunal
had jurisdiction over contests relating to their election, returns and qualifications.
Again, the Court refused to intervene citing Alejandrino and affirmed the inherent
right of the legislature to determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito, 14 three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to
the Constitution. If their votes had been counted, the affirmative votes in favor
of the proposed amendment would have been short of the necessary three-
fourths vote in either House of Congress to pass the amendment. The
amendment was eventually submitted to the people for ratification. The Court
declined to intervene and held that a proposal to amend the Constitution is a
highly political function performed by Congress in its sovereign legislative
capacity. 15

In the 1955 case of Arnault v. Balagtas, 16 petitioner, a private citizen, assailed


the legality of his detention ordered by the Senate for his refusal to answer
questions put to him by members of one of its investigating committees. This
Court refused to order his release holding that the process by which a
contumacious witness is dealt with by the legislature is a necessary concomitant
of the legislative process and the legislature's exercise of its discretionary
authority is not subject to judicial interference.

In the 1960 case of Osmeña v. Pendatun, 17 the Court followed the traditional
line. Congressman Sergio Osmeña, Jr. was suspended by the House of
Representatives for serious disorderly behavior for making a privilege speech
imputing "malicious charges" against the President of the Philippines. Osmeña,
Jr. invoked the power of review of this Court but the Court once more did not
interfere with Congress' power to discipline its members.

The contours of the political question doctrine have always been tricky. To be
sure, the Court did not always stay its hand whenever the doctrine is invoked. In
the 1949 case of Avelino v. Cuenco, 18 Senate President Jose Avelino, who was
deposed and replaced, questioned his successor's title claiming that the latter
had been elected without a quorum. The petition was initially dismissed on the
ground that the selection of Senate President was an internal matter and not
subject to judicial review. 19 On reconsideration, however, the Court ruled that it
could assume jurisdiction over the controversy in light of subsequent events
justifying intervention among which was the existence of a quorum. 20 Though
the petition was ultimately dismissed, the Court declared respondent Cuenco as
the legally elected Senate President.
In the 1957 case of Tañada v. Cuenco, 21 the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal.
It rejected the Solicitor General's claim that the dispute involved a political
question. Instead, it declared that the Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral
Tribunal and the exercise of its power thereon is subject to constitutional
limitations which are mandatory in nature. 22 It held that under the Constitution,
the membership of the Senate Electoral Tribunal was designed to insure the
exercise of judicial impartiality in the disposition of election contests affecting
members of the lawmaking body. 23 The Court then nullified the election to the
Senate Electoral Tribunal made by Senators belonging to the party having the
largest number of votes of two of their part members but purporting to act on
behalf of the party having the second highest number of votes.

In the 1962 case of Cunanan v. Tan, Jr., 24 the Court passed judgment on
whether Congress had formed the Commission on Appointments in accordance
with the Constitution and found that it did not. It declared that the Commission
on Appointments is a creature of the Constitution and its power does not come
from Congress but from the Constitution.

The 1967 case of Gonzales v. Comelec 25 and the 1971 case of Tolentino v.
Comelec 26 abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a
political issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the


issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution — which was being
submitted to the people for ratification — satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes v. Chief Accountant of the Senate,
Avelino v. Cuenco, Tañada v. Cuenco, and Macias v. Commission on
Elections. In the first, we held that the officers and employees of the
Senate Electoral Tribunal are under its supervision and control, not of
that of the Senate President, as claimed by the latter; in the second, this
Court proceeded to determine the number of Senators necessary for a
quorum in the Senate; in the third, we nullified the election, by Senators
belonging to the party having the largest number of votes in said
chamber, purporting to act on behalf of the party having the second
largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representative districts for the
House of Representatives, upon the ground that the apportionment had
not been made as may be possible according to the number of
inhabitants of each province. Thus, we rejected the theory, advanced in
these four cases, that the issues therein raised were political questions
the determination of which is beyond judicial review." 27

The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their
authority from the fundamental law and they do not have the final say on
whether their acts are within or beyond constitutional limits. 28 This ruling was
reiterated in Tolentino which held that acts of a constitutional convention called
for the purpose of proposing amendments to the Constitution are at par with
acts of Congress acting as a constituent assembly. 29

In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature. 30

The Court hewed to the same line as regards the exercise of Executive power.
Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General, 31 where it was held that the Governor-General, as head of
the executive department, could not be compelled by mandamus to call a special
election in the town of Silay for the purpose of electing a municipal
president. Mandamus and injunction could not lie to enforce or restrain a duty
which is discretionary. It was held that when the Legislature conferred upon the
Governor-General powers and duties, it did so for the reason that he was in a
better position to know the needs of the country than any other member of the
executive department, and with full confidence that he will perform such duties
as his best judgment dictates. 32

Similarly, in Abueva v. Wood, 33 the Court held that the Governor-General could
not be compelled by mandamus to produce certain vouchers showing the various
expenditures of the Independence Commission. Under the principle of separation
of powers, it ruled that it was not intended by the Constitution that one branch
of government could encroach upon the field of duty of the other. Each
department has an exclusive field within which it can perform its part within
certain discretionary limits. 34 It observed that "the executive and legislative
departments of government are frequently called upon to deal with what are
known as political questions, with which the judicial department of government
has no intervention. In all such questions, the courts uniformly refused to
intervene for the purpose of directing or controlling the actions of the other
department; such questions being many times reserved to those departments in
the organic law of the state." 35

In Forbes v. Tiaco, 36 the Court also refused to take cognizance of a case


enjoining the Chief Executive from deporting an obnoxious alien whose
continued presence in the Philippines was found by him to be injurious to the
public interest. It noted that sudden and unexpected conditions may arise,
growing out of the presence of untrustworthy aliens, which demand immediate
action. The President's inherent power to deport undesirable aliens is universally
denominated as political, and this power continues to exist for the preservation
of the peace and domestic tranquility of the nation. 37

In Manalang v. Quitoriano, 38 the Court also declined to interfere in the exercise


of the President's appointing power. It held that the appointing power is the
exclusive prerogative of the President, upon which no limitations may be
imposed by Congress, except those resulting from the need of securing
concurrence of the Commission on Appointments and from the exercise of the
limited legislative power to prescribe qualifications to a given appointive office.

We now come to the exercise by the President of his powers as Commander-in-


Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held
that as Commander-in-Chief of the Armed Forces, the President has the power to
determine whether war, in the legal sense, still continues or has terminated. It
ruled that it is within the province of the political department and not of the
judicial department of government to determine when war is at end. 39

In 1952, the Court decided the landmark case of Montenegro


v. Castañeda. 40 President Quirino suspended the privilege of the writ of habeas
corpus for persons detained or to be detained for crimes of sedition, insurrection
or rebellion. The Court, citing Barcelon, declared that the authority to decide
whether the exigency has arisen requiring the suspension of the privilege
belongs to the President and his decision is final and conclusive on the courts. 41

Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came. 42 Lansang reversed the previous cases and held that the
suspension of the privilege of the writ of habeas corpus was not a political
question. According to the Court, the weight of Barcelon was diluted by two
factors: (1) it relied heavily onMartin v. Mott, which involved the U.S. President's
power to call out the militia which is a much broader power than suspension of
the privilege of the writ; and (2) the privilege was suspended by the American
Governor-General whose act, as representative of the sovereign affecting the
freedom of its subjects, could not be equated with that of the President of the
Philippines dealing with the freedom of the sovereign Filipino people.

The Court declared that the power to suspend the privilege of the writ of habeas
corpus is neither absolute nor unqualified because the Constitution sets limits on
the exercise of executive discretion on the matter. These limits are: (1) that the
privilege must not be suspended except only in cases of invasion, insurrection or
rebellion or imminent danger thereof; and (2) when the public safety requires it,
in any of which events the same may be suspended wherever during such period
the necessity for the suspension shall exist. The extent of the power which may
be inquired into by courts is defined by these limitations. 43

On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to
check the Executive; to ascertain whether the President has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or
to determine the wisdom of his act. Judicial inquiry is confined to the question of
whether the President did not act arbitrarily. 44 Using this yardstick, the Court
found that the President did not.

The emergency period of the 1970's flooded the Court with cases which raised
the political question defense. The issue divided the Court down the
middle. Javellana v. Executive Secretary 45 showed that while a majority of the
Court held that the issue of whether or not the 1973 Constitution had been
ratified in accordance with the 1935 Constitution was justiciable, a majority also
ruled that the decisive issue of whether the 1973 Constitution had come into
force and effect, with or without constitutional ratification, was a political
question. 46

The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile, 47 it upheld the President's
declaration of martial law. On whether the validity of the imposition of martial
law was a political or justiciable question, the Court was almost evenly divided.
One-half embraced the political question position and the other half subscribed
to the justiciable position in Lansang. Those adhering to the political question
doctrine used different methods of approach to it. 48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile. 49 The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners
sought the issuance of a writ of habeas corpus. The Court found that the PCO
had the function of validating a person's detention for any of the offenses
covered in Proclamation No. 2045 which continued in force the suspension of the
privilege of the writ of habeas corpus. It held that the issuance of the PCO by the
President was not subject to judicial inquiry. 50 It went further by declaring that
there was a need to re-examine Lansang with a view to reverting
to Barcelon and Montenegro. It observed that in times of war or national
emergency, the President must be given absolute control for the very life of the
nation and government is in great peril. The President, it intoned, is answerable
only to his conscience, the people, and God.51

But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile 52 reiterating Lansang. It held that by the power of judicial review, the
Court must inquire into every phase and aspect of a person's detention from the
moment he was taken into custody up to the moment the court passes upon the
merits of the petition. Only after such a scrutiny can the court satisfy itself that
the due process clause of the Constitution has been met. 53

It is now history that the improper reliance by the Court on the political question
doctrine eroded the people's faith in its capacity to check abuses committed by
the then Executive in the exercise of his commander-in-chief powers, particularly
violations against human rights. The refusal of courts to be pro-active in the
exercise of its checking power drove the people to the streets to resort to
extralegal remedies. They gave birth to EDSA.

Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the
express power to review the exercise of the powers as commander-in-chief by
the President and deny it of any discretion to decline its exercise.
The second was the need to compel the Court to be pro-active by expanding its
jurisdiction and, thus, reject its laid back stance against acts constituting grave
abuse of discretion on the part of any branch or instrumentality of government.
Then Chief Justice Roberto Concepcion, a member of the Constitutional
Commission, worked for the insertion of the second paragraph of Section 1,
Article VIII in the draft Constitution, 54 which reads:

"Sec. 1.. . ..
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."

The language of the provision clearly gives the Court the power to strike
down acts amounting to grave abuse of discretion of both the legislative and
executive branches of government.

We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:

"Sec. 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. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by Congress,
if the invasion or rebellion shall persist and public safety requires it.
HDTSCc

The Congress, if not in session, shall, within twenty-four hours following


such proclamation or suspension, convene in accordance with its rules
without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by


any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days
from its filing.

xxx xxx xxx."

It is clear from the foregoing that the President, as Commander-in-Chief of


the armed forces of the Philippines, may call out the armed forces subject to
two conditions: (1) whenever it becomes necessary; and (2) to prevent or
suppress lawless violence, invasion or rebellion. Undeniably, these conditions
lay down the sine qua requirement for the exercise of the power and the
objective sought to be attained by the exercise of the power. They define the
constitutional parameters of the calling out power. Whether or not there is
compliance with these parameters is a justiciable issue and is not a political
question.

I am not unaware that in the deliberations of the Constitutional Commission,


Commissioner Bernas opined that the President's exercise of the "calling out
power," unlike the suspension of the privilege of the writ of habeas corpus and
the declaration of martial law, is not a justiciable issue but a political question
and therefore not subject to judicial review.

It must be borne in mind, however, that while a member's opinion expressed on


the floor of the Constitutional Convention is valuable, it is not necessarily
expressive of the people's intent. 55 The proceedings of the Convention are less
conclusive on the proper construction of the fundamental law than are legislative
proceedings of the proper construction of a statute, for in the latter case it is the
intent of the legislature the courts seek, while in the former, courts seek to arrive
at the intent of the people through the discussions and deliberations of their
representatives. 56 The conventional wisdom is that the Constitution does not
derive its force from the convention which framed it, but from the people who
ratified it, the intent to be arrived at is that of the people. 57

It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.

Given the light of our constitutional history, this express grant of power merely
means that the Court cannot decline the exercise of its power because of the
political question doctrine as it did in the past. In fine, the express grant simply
stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
It may be conceded that the calling out power may be a "lesser power"
compared to the power to suspend the privilege of the writ of habeas corpus and
the power to declare martial law. Even then, its exercise cannot be left to the
absolute discretion of the Chief Executive as Commander-in-Chief of the armed
forces, as its impact on the rights of our people protected by the Constitution
cannot be downgraded. We cannot hold that acts of the commander-in-chief
cannot be reviewed on the ground that they have lesser impact on the civil and
political rights of our people. The exercise of the calling out power may be
"benign" in the case at bar but may not be so in future cases.

The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to
push the political question doctrine too far, is apropos. It will not be
complementary to the Court if it handcuffs itself to helplessness when a
grievously injured citizen seeks relief from a palpably unwarranted use of
presidential or military power, especially when the question at issue falls in the
penumbra between the "political" and the "justiciable." 58

We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been committed, is a
delicate exercise in constitutional interpretation, and is a responsibility of
the Court as ultimate interpreter of the fundamental law. 59 When private
justiciable rights are involved in a suit, the Court must not refuse to assume
jurisdiction even though questions of extreme political importance are necessarily
involved. 60 Every officer under a constitutional government must act according
to law and subject to the controlling power of the people, acting through the
courts, as well as through the executive and legislative. One department is just
as representative of the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places
upon all official action. 61 This historic role of the Court is the foundation stone of
a government of laws and not of men. 62

I join the Decision in its result.

VITUG, J.:
In the equation of judicial power, neither of two extremes — one totalistic and
the other bounded — is acceptable nor ideal. The 1987 Constitution has
introduced its definition of the term "judicial power" to be that which —

". . . includes the duty of the courts of justice to settle actual


controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." 1

It is not meant that the Supreme Court must be deemed vested with the
awesome power of overseeing the entire bureaucracy, let alone of
institutionalizing judicial absolutism, under its mandate. But while this Court does
not wield unlimited authority to strike down an act of its two co-equal branches
of government, it must not wither under technical guise on its constitutionally
ordained task to intervene, and to nullify if need be, any such act as and when it
is attended by grave abuse of discretion amounting to lack or excess of
jurisdiction. The proscription then against an interposition by the Court into
purely political questions, heretofore known, no longer holds within that context.

Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his
concurring opinion:

". . . [I] concur with the majority that this Court has jurisdiction over
cases like the present . . . so as to establish in this country the judicial
supremacy, with the Supreme Court as the final arbiter, to see that no
one branch or agency of the government transcends the Constitution,
not only in justiceable but political questions as well." 3

It is here when the Court must have to depart from the broad principle of
separation of powers that disallows an intrusion by it in respect to the purely
political decisions of its independent and coordinate agencies of government.

The term grave abuse of discretion is long understood in our jurisprudence as


being, and confined to, a capricious and whimsical or despotic exercise of
judgment amounting to lack or excess of jurisdiction. Minus the not-so-unusual
exaggerations often invoked by litigants in the duel of views, the act of the
President in simply calling on the Armed Forces of the Philippines, an executive
prerogative, to assist the Philippine National Police in "joint visibility patrols" in
the metropolis does not, I believe, constitute grave abuse of discretion that
would now warrant an exercise by the Supreme Court of its extraordinary power
as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without


standing to question the validity of LOI 02/2000 which mandates the Philippine
Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I
dissent insofar as the opinion dismisses the petition in this case on other
grounds. I submit that judgment on the substantive constitutional issues raised
by petitioner must await an actual case involving real parties with "injuries" to
show as a result of the operation of the challenged executive action. While as an
organization for the advancement of the rule of law petitioner has an interest in
upholding the Constitution, its interest is indistinguishable from the interest of
the rest of the citizenry and falls short of that which is necessary to give
petitioner standing.

As I have indicated elsewhere, a citizens' suit challenging the constitutionality of


governmental action requires that (1) the petitioner must have suffered an
"injury in fact" of an actual or imminent nature; (2) there must be a causal
connection between the injury and the conduct complained of; and (3) the injury
is likely to be redressed by a favorable action by this Court. 1 The "injury in fact"
test requires more than injury to a cognizable interest. It requires that the party
seeking review be himself among those injured. 2

My insistence on compliance with the standing requirement is grounded in the


conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise
nature of the problem presented. Many a time we have adverted to the power of
judicial review as an awesome power not to be exercised save in the most
exigent situation. For, indeed, sound judgment on momentous constitutional
questions is not likely to be reached unless it is the result of a clash of adversary
arguments which only parties with direct and specific interest in the outcome of
the controversy can make. This is true not only when we strike down a law or
official action but also when we uphold it.

In this case, because of the absence of parties with real and substantial interest
to protect, we do not have evidence on the effect of military presence in malls
and commercial centers, i.e., whether such presence is coercive or benign. We
do not know whether the presence of so many marines and policemen scares
shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To
be sure, the deployment of troops to such places is not like parading them at the
Luneta on Independence Day. Neither is it, however, like calling them out
because of actual fighting or the outbreak of violence.

We need to have evidence on these questions because, under the Constitution,


the President's power to call out the armed forces in order to suppress lawless
violence, invasion or rebellion is subject to the limitation that the exercise of this
power is required in the interest of public safety. 3

Indeed, whether it is the calling out of the armed forces alone in order to
suppress lawless violence, invasion or rebellion or also the suspension of the
privilege of the writ of habeas corpus or the proclamation of martial law (in case
of invasion or rebellion), the exercise of the President's powers as commander-
in-chief, requires proof — not mere assertion. 4 As has been pointed out,
"Standing is not 'an ingenious academic exercise in the conceivable' . . . but
requires . . . a factual showing of perceptible harm." 5

Because of the absence of such record evidence, we are left to guess or even
speculate on these questions. Thus, at one point, the majority opinion says that
what is involved here is not even the calling out of the armed forces but only the
use of marines for law enforcement. (p. 13) At another point, however, the
majority opinion somersaults and says that because of bombings perpetrated by
lawless elements, the deployment of troops in shopping centers and public
utilities is justified. (p. 24)

We are likely to err in dismissing the suit brought in this case on the ground that
the calling out of the military does not violate the Constitution, just as we are-
likely to do so if we grant the petition and invalidate the executive issuance in
question. For indeed, the lack of a real, earnest and vital controversy can only
impoverish the judicial process. That is why, as Justice Laurel emphasized in
the Angara case, "this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties,
and limited further to the constitutional question raised or the very lis
mota presented." 6

We are told, however, that the issues raised in this case are of "paramount
interest" to the nation. It is precisely because the issues raised are of paramount
importance that we should all the more forego ruling on the constitutional issues
raised by petitioner and limit the dismissal of this petition on the ground of lack
of standing of petitioner. A Fabian policy of leaving well enough alone is a
counsel of prudence. DTSaIc
For these reasons and with due appreciation of the scholarly attention lavished
by the majority opinion on the constitutional questions raised, I am constrained
to limit my concurrence to the dismissal of this suit on the ground of lack of
standing of petitioner and the consequent lack of an actual case or controversy.
Footnotes

1.Rollo, pp. 17-21.

2.As of 19 May 2000, the Marines have been recalled from their areas of deployment
to join the military operations in Mindanao, and replaced by Air Force personnel
who took over their functions in the joint visibility patrols. The Air Force
personnel, just like the Marines, were ordered to assist the PNP, also by virtue
of LOI 2/2000. Since both the Marines and Air Force belong to the Armed
Forces, the controversy has not been rendered moot and academic by the
replacement of the former by the latter. The validity of the deployment of the
armed forces in the joint visibility patrols thus remain an issue.

3.Rollo, pp. 75-76.

4.Id., at 75.

5.Id.

6.Id.

7.Rollo, p. 75.

8.Id., at 17-18.

9.Id.

10.Rollo, p. 7.

11.Id., at 24.

12.Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz
Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51
(1990);Dumlao v. Commission on Elections, 95 SCRA 392 (1980), and, People
v. Vera, 65 Phil. 56 (1937).

13.Joya v. Presidential Commission on Good Government, 225 SCRA 568, 576 (1993).

14.Ibid., citing House International Building Tenants Association, Inc. v. Intermediate


Appellate Court, 151 SCRA 703 (1987).
15.Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, 678 (1962).

16.Joya v. Presidential Commission on Good Government, supra note 13, at 579


citingDumlao v. Commission on Elections, 95 SCRA 392 (1980).

17.Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997)
citingGarcia v. Executive Secretary, 211 SCRA 219 (1992); Osmeña
v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991);
and, Araneta v. Dinglasan, 84 Phil. 368 (1949).

18.Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on


Good Government, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496
(1989). As formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr.
in Kilosbayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's
standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of the issues
raised," favorably citing our ruling in the Emergency Powers Cases [L-2044
(Araneta v. Dinglasan); L-2756 (Araneta v. Angeles); L-3054 (Rodriguez v.
Tesorero de Filipinas); and L-3056 (Barredo v. COMELEC), 84 Phil. 368 (1940)]
where this Court brushed aside this technicality because "the transcendental
importance to the public of those cases demands that they be settled promptly
and definitely, brushing aside, if we must, technical rules of procedure." An
inflexible rule on locus standi would result in what Mr. Justice Florentino P.
Feliciano aptly described as a "doctrinal ball and chain . . . clamped on our own
limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)].

19.Rollo, p. 12.

20.Article II, Sections 4 and 5 of the Constitution provide:

Sec. 4.The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military or civil service.

Sec. 5.The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.

21.177 SCRA 668, 694 (1989).

22.WEST'S LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).

23.103 Phil. 1051 (1957).


24.369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).

25.Article VIII, Sec. 1 of the 1987 CONSTITUTION.

26.Santiago v. Guingona, Jr., 298 SCRA 756 (1998).

27.Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).

28.Marcos v. Manglapus, supra note 21, see also Daza v. Singson, 180 SCRA 496
(1988); Coseteng v. Mitra, 187 SCRA 377 (1990).

29.Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank
v. NLRC, 165 SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA
494 (1988).

30.Ledesma v. Court of Appeals, 278 SCRA 656 (1997).

31.Bondoc v. Pineda, 201 SCRA 792 (1991).

32.Drilon v. Lim, 235 SCRA 135 (1994).

33.Sarmiento v. Mison, 156 SCRA 549 (1987).

34.II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND


DEBATES, pp. 409, 412 (1986).

35.Rollo, p. 75.

36.Section 3, provides:

Civilian authority, is at all times, supreme over the military. The Armed Forces of the
Philippines is the protector of the people and the State. Its goal is to secure the
sovereignty of the State and the integrity of the national territory.

37.No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:

a.RD, NCRPO is designated as Task Force Commander "TULUNGAN."

38.No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-


PHILIPPINE MARINES:

b.Before their deployment/employment, receiving units shall properly brief/orient the


troops on police patrol/visibility procedures.

39.No. 8 of the LOI provides: TASKS:


k.POLICE DISTRICTS/STATIONS

—Provide direction and manage the deployment of all Philippine Marines personnel
deployed in your AOR for police visibility operations.

—Conduct briefing/orientation to Philippine Marines' personnel on the do's and dont's


of police visibility patrols.

—Provide transportation to Philippine Marines from districts headquarters to different


stations and PCPs.

—Perform other tasks as directed.

40.No. 8 of the LOI states: TASKS:

c.RLD/R4

—Coordinate with the Directorate for Logistics for the issuance of the following
equipments (sic) to be utilize (sic) by the Philippine Marines personnel: 500
pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.

—Coordinate with the Directorate for Logistics for the issuance of the following for use
of PNP personnel involved in the visibility patrol operations:

1,000 sets of PNP GOA Uniform

500 each raincoats

500 each Probaton

500 each Whistle

500 each handcuffs

500 each Combat Boots

500 each low cut shoes

—Provide transportation to the Philippine Marines personnel in coordination with LSS,


NHQ PNP.

—Provide additional gas allocation to Philippine Marines' members of the Inspection


Teams.

—Perform other tasks as directed.


41.Sec. 5(4), Article XVI, provides:

No member of the Armed Forces in the active service shall, at any time, be appointed
in the government including government-owned and controlled corporations or
any of their subsidiaries.

42.CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999),


which is entitled "In Re Guidelines for the Designation of Registration Centers
and the Accountable Officers for the Polaroid Instant Cameras for Purposes of
the Registration of Voters on 8-9 May 1999 in the Autonomous Region in
Muslim Mindanao;" Comelec Resolution No. 3059 (1999), which is entitled, "In
the Matter of Deputizing the Armed Forces of the Philippines and the Three (3)
AFP Components, Namely: Philippine Army, Philippine Navy and Philippine Air
Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct
Mapping, Registration of Voters and the Holding of the September 13, 1999
Elections in the Autonomous Region in Muslim Mindanao (ARMM);" Republic
Act No. 7166 (1991), Section 33, which is entitled "An Act Providing for
Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations therefor, and for other Purposes;" Administrative
Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas
Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also
known as "Omnibus Election Code."

43.Republic Act No. 95 (1947), Section 5, which is entitled "An Act to Incorporate the
Philippine National Red Cross Section;" Republic Act No. 855 (1953), Section 1,
which is entitled "An Act to Amend Section V of Republic Act Numbered Ninety-
Five, entitled "An Act to Incorporate the Philippine National Red Cross."

44.Republic Act No. 7077 (1991), Article III, Section 7, which is entitled "An Act
Providing for the Development, Administration, Organization, Training,
Maintenance and Utilization of the Citizen Armed Forces of the Armed Forces of
the Philippines and for other Purposes."

45.Republic Act No. 6847 (1990), Section 7, which is entitled "An Act Creating and
Establishing The Philippine Sports Commission, Defining its Powers, Functions
and Responsibilities, Appropriating Funds therefor, and for other Purposes."

46.Republic Act No. 8492 (1998), Section 20, which is entitled "An Act Establishing a
National Museum System, Providing for its Permanent Home and for other
Purposes."

47.Republic Act No. 8550 (1998), Section 124, which is entitled "An Act Providing for
the Development, Management and Conservation of the Fisheries and Aquatic
Resources, Integrating All Law Pertinent Thereto, and for other Purposes;
Memorandum Circular No. 150 (1996), which is entitled "Amending
Memorandum Circular No. 128, dated July 20, 1995 by Reorganizing the
Presidential Task Force on Tubbataha Reef National Marine Park;" Executive
Order No. 544 (1979), Letter I, which is entitled "Creating a Presidential
Committee for the Conservation of the Tamaraw, Defining its Powers and for
other Purposes."

48.Executive Order No. 129-A (1987) Section 5 (m), which is entitled "Modifying
Executive Order No. 129 Reorganizing and Strengthening the Department of
Agrarian Reform and for other Purposes."

49.Republic Act No. 1937 (1957), Section 2003, which is entitled "An Act to Revise
and Codify the Tariff and Customs Laws of the Philippines;" Executive Order
No. 45 (1998), which is entitled "Creating a Presidential Anti-Smuggling Task
Force to Investigate and Prosecute Crimes Involving Large-Scale Smuggling
and other Frauds upon Customs and Providing Measures to Expedite Seizure
Proceedings;"

50.These cases involved joint military and civilian law enforcement operations: People
v. Escalante, G.R. No. 106633, December 1, 1994; People v. Bernardo, G.R.
No. 97393, March 17, 1993; People v. De la Cruz, G.R. No. 83260, April 18,
1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case recognizes
the complementary roles of the PNP and the military in conducting anti-crime
campaigns, provided that the people's rights are not violated in these words:
"If the military and the police must conduct concerted campaigns to flush out
and catch criminal elements, such drives must be consistent with the
constitutional and statutory rights of all people affected by such actions." The
creation of the Task Force also finds support in Valmonte v. de Villa, 185 SCRA
665 (1990). Executive Order No. 62 (1999), which is entitled "Creating the
Philippine Center on Transnational Crime to Formulate and Implement a
Concerted Program of Action of All Law Enforcement, Intelligence and other
Agencies for the Prevention and Control of Transnational Crime;" Executive
Order No. 8 (1998), which is entitled "Creating a Presidential Anti-Organized
Crime Commission and a Presidential Anti-Organized Crime Task Force, to
Investigate and Prosecute Criminal Elements in the Country;" Executive Order
No. 280 (1995), which is entitled "Creating a Presidential Task Force of
Intelligence and Counter-Intelligence to Identify, Arrest and Cause the
Investigation and Prosecution of Military and other Law Enforcement Personnel
on their Former Members and Their Cohorts Involved in Criminal Activities."
51.Memorandum Circular No. 141 (1996), which is entitled "Enjoining Government
Agencies Concerned to Extend Optimum Support and Assistance to the
Professional Regulation Commission in its Conduct of Licensure Examinations."

52.Memorandum Circular No. 32 (1999), which is entitled "Directing the Government


Agencies Concerned to Extend Maximum Support and Assistance to the
National Educational Testing and Research Center (NETRC) of the Department
of Education, Culture and Sports (DECS) in the Conduct of Tests of National
Coverage."

53.Executive Order No. 61 (1999), which is entitled "Creating the National Drug Law
Enforcement and Prevention Coordinating Center to Orchestrate Efforts of
National Government Agencies, Local Government Units, and Non-Government
Organizations for a More Effective Anti-Drug Campaign."

54.Republic Act No. 4089 (1984), which is entitled "An Act Making the City Health
Officer of Bacolod City the Local Civil Registrar, Amending for the Purpose
Section Forty-Three of the Charter of said City;" Republic Act No. 537 (1950),
which is entitled "An Act to Revise the Charter of Quezon City;" Commonwealth
Act No. 592 (1940), which is entitled "An Act to Create the City of Dansalan;"
Commonwealth Act No. 509 (1939); which is entitled "An Act to Create Quezon
City;" Commonwealth Act No. 326 (1938), which is entitled "An Act Creating
the City of Bacolod;" Commonwealth Act No. 39 (1936), which is entitled "An
Act Creating the City of Zamboanga;" Commonwealth Act No. 51 (1936), which
is entitled "An Act Creating the City of Davao."

55.Republic Act No. 36 (1946), which is entitled "Census Act of Nineteen Hundred and
Forty-Six."

56.Republic Act No. 776 (1952), Section 5, which is entitled "An Act to Reorganize the
Civil Aeronautics Board and the Civil Aeronautics Administration, To Provide for
the Regulation of Civil Aeronautics in the Philippines and Authorizing the
Appropriation of Funds Therefor."

57.Republic Act No. 6613 (1972), Section 4, which is entitled "An Act Declaring a
Policy of the State to Adopt Modern Scientific Methods to Moderate Typhoons
and Prevent Destruction by Floods, Rains and Droughts, Creating a Council on
Typhoons and Prevent Destruction by Flood, Rains and Droughts, Creating a
Council on Typhoon Moderation and Flood Control Research and Development,
Providing for its Powers and Functions and Appropriating Funds Therefor."

58.Local Government Code of 1991, Book I, Title Seven, Section 116.


59.This theory on gloss of executive power was advanced by Justice Frankfurter in his
concurring opinion in Youngstown Sheet and Tube v. Sawyer, 343 US 579,
610-611 (1952).

60.Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).

61.18 U.S.C.A § 1385 (1878).

62.Ibid.

63.Bissonette v. Haig, supra note 60, at 1390.

64.A power regulatory in nature is one which controls or directs. It is proscriptive if it


prohibits or condemns and compulsory if it exerts some coercive force. See US
v. Yunis, 681 F. Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND
POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN
CIVIL LAW ENFORCEMENT, 54 George Washington Law Review, pp. 404-433
(1986), which discusses the four divergent standards for assessing acceptable
involvement of military personnel in civil law enforcement. See likewise
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE
LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973.

65.L.O.I. 02/2000, "TULUNGAN," Rollo, pp. 17-22.

66.No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-


PHILIPPINE MARINES:

a.The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP
personnel dedicated for police visibility patrols in tandem with the Philippine
Marines.

b.Before their deployment/employment, receiving units shall properly brief/orient the


troops on police patrol/visibility procedures.

67.Supra note 34.

68.Supra note 32.

69.No. 9 of the LOI states:

d.In case of apprehensions, arrested person/s shall be brought to the nearest police
stations/PCPs.

70.Supra note 35.


71.Rollo, p. 70.

PUNO, J.:

1.Sec. 1, Article VIII, 1987 Constitution.

2.Tañada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.

3.Tañada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].

4.Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p.


859 [1996].

5.5 Phil. 87 [1905].

6.Id. at 97.

7.Id. at 104.

8.See Cruz, Philippine Political Law, p. 87 [1998].

9.Id. at 113-114.

10.Id. at 106-107.

11.46 Phil. 83 [1924].

12.Id. at 97.

13.77 Phil. 192 [1946].

14.78 Phil. 1 [1947].

15.Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under
the political question doctrine, "imports absolute verity on the courts" — at 12.

16.97 Phil. 358 [1955].

17.109 Phil. 863 [1960].

18.83 Phil. 17 [1949].

19.Id. at 21-22.

20.Id. at 68-69.
21.103 Phil. 1051 [1957].

22.Id. at 1068.

23.Id. at 1083.

24.5 SCRA 1 [1962].

25.21 SCRA 774 [1967].

26.41 SCRA 702 [1971].

27.Id. at 785-786.

28.Id. at 787.

29.41 SCRA at 713.

30.Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p.


861 [1996].

31.16 Phil. 366 [1910];

32.Id. at 401.

33.45 Phil. 612 [1924].

34.Id. at 630.

35.Id. at 637-638.

36.16 Phil. 534 [1910].

37.Id. at 568-569, 576.

38.94 Phil. 903 [1954].

39.Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50
[1945].

40.91 Phil. 882 [1952].

41.Id. at 887.

42.42 SCRA 448 [1971].


43.Id. at 474.

44.Id. at 480-481.

45.50 SCRA 30 [1973].

46.Id. at 138, 140-141.

47.59 SCRA 183 [1973].

48.Ibid.

49.121 SCRA 472 [1983].

50.Id. at 490-491.

51.Id. at 500-501.

52.121 SCRA 538 [1983].

53.Id. at 563.

54.See Concepcion's sponsorship speech, I Record 434-435; see also Bernas, The
Constitution of the Republic of the Philippines A Commentary, p. 863 [1996].

55.J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426
[1970].

56.Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction,
4th ed., p. 454 [1998].

57.Black, Handbook on the Construction and Interpretation of the Laws, 2d ed., p. 39


[1911].

58.42 SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander
in-Chief, pp. 16-17 [1951].

59.Baker v. Carr, 7 L Ed. 2d at 682.

60.Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].

61.Tanada v. Macapagal, 103 Phil. at 1067, quoting In re McConaughy, 119 NW 408


[1909].

62.Id.
VITUG, J.:

1.Section 1, Article VIII of the Constitution.

2.83 Phil. 17.

3.Sen Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298
SCRA 756.

MENDOZA, J., concurring and dissenting:

1.Tatad v. Garcia, 243 SCRA 436, 473 (1995)


(concurring). Accord, Telecommunication and Broadcast Attorneys of the
Philippines v. COMELEC, 289 SCRA 343 (1998).

2.Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).

3.See CONST., ART. VII, §18.

4.See Lansang v. Garcia, 42 SCRA 448 (1971).

5.Lujan v. Defenders of Wildlife, supra.

6.Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).


EN BANC

SOUTHERN HEMISPHERE G.R. No. 178552


ENGAGEMENT NETWORK,
INC., on behalf of the South-South
Network (SSN) for Non-State Present:
Armed Group Engagement, and
ATTY. SOLIMAN M. SANTOS, CORONA, C.J.,
JR., CARPIO,
Petitioners, CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE
CASTRO,
BRION,
ANTI-TERRORISM COUNCIL, PERALTA,
THE EXECUTIVE SECRETARY, BERSAMIN,
THE SECRETARY OF JUSTICE, DEL CASTILLO,
THE SECRETARY OF FOREIGN ABAD,
AFFAIRS, THE SECRETARY OF VILLARAMA, JR.,
NATIONAL DEFENSE, THE PEREZ,
SECRETARY OF THE MENDOZA, and
INTERIOR AND LOCAL SERENO, JJ.
GOVERNMENT, THE
SECRETARY OF FINANCE, THE
NATIONAL SECURITY
ADVISER, THE CHIEF OF
STAFF OF THE ARMED
FORCES OF THE PHILIPPINES,
AND THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE,
Respondents.

x ------------------------------- x Promulgated:

KILUSANG MAYO UNO (KMU), October 5, 2010


represented by its Chairperson
Elmer Labog, NATIONAL
FEDERATION OF LABOR G.R. No. 178554
UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented
by its National President Joselito V.
Ustarez and Secretary General
Antonio C. Pascual, and CENTER
FOR TRADE UNION AND
HUMAN RIGHTS, represented by
its Executive Director Daisy Arago,
Petitioners,

- versus -

HON. EDUARDO ERMITA, in his


capacity as Executive Secretary,
NORBERTO GONZALES, in his
capacity as Acting Secretary of
National Defense, HON. RAUL
GONZALES, in his capacity as
Secretary of Justice, HON.
RONALDO PUNO, in his capacity
as Secretary of the Interior and
Local Government, GEN.
HERMOGENES ESPERON, in his
capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as
PNP Chief of Staff,
Respondents.

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

BAGONG ALYANSANG
MAKABAYAN (BAYAN),
GENERAL ALLIANCE BINDING
WOMEN FOR REFORMS,
INTEGRITY, EQUALITY,
LEADERSHIP AND ACTION
(GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF
CONCERNED CITIZENS FOR G.R. No. 178581
CIVIL LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY,
RECOGNITION AND
ADVANCEMENT OF
GOVERNMENT EMPLOYEES
(COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY OF
CAVITE WORKERS, LEAGUE
OF FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG
LAKAS NG KILUSANG
MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE
OF CONCERNED TEACHERS
(ACT), MIGRANTE, HEALTH
ALLIANCE FOR DEMOCRACY
(HEAD), AGHAM, TEOFISTO
GUINGONA, JR., DR.
BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR.,
SISTER MARY JOHN
MANANSAN OSB, DEAN
CONSUELO PAZ, ATTY.
JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.),
CARLITOS SIGUION-REYNA,
DR. CAROLINA PAGADUAN-
ARAULLO, RENATO REYES,
DANILO RAMOS,
EMERENCIANA DE LESUS,
RITA BAUA, REY CLARO
CASAMBRE,
Petitioners,
- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL
GONZALES, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT SECRETARY
RONALDO PUNO.
DEPARTMENT OF FINANCE
SECRETARY MARGARITO
TEVES, NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE
ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE
PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.
x ------------------------------------ x
KARAPATAN, ALLIANCE FOR
THE ADVANCEMENT OF
PEOPLE’S RIGHTS, represented
herein by Dr. Edelina de la Paz,
and representing the following
organizations: HUSTISYA,
represented by Evangeline
Hernandez and also on her own
behalf; DESAPARECIDOS,
represented by Mary Guy
Portajada and also on her own
behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA
DETENSYON AT PARA SA
AMNESTIYA (SELDA),
represented by Donato Continente
and also on his own behalf,
ECUMENICAL MOVEMENT
FOR JUSTICE AND PEACE
(EMJP), represented by Bishop
Elmer M. Bolocon, UCCP, and
PROMOTION OF CHURCH
PEOPLE’S RESPONSE,
represented by Fr. Gilbert Sabado,
OCARM, G.R. No. 178890
Petitioners,

- versus -
GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARTY EDUARDO
ERMITA, DEPARTMENT OF
JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT SECRETARY
RONALDO PUNO,
DEPARTMENT OF FINANCE
SECRETARY MARGARITO
TEVES, NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE
ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE
PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.

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

THE INTEGRATED BAR OF


THE PHILIPPINES (IBP),
represented by Atty. Feliciano M.
Bautista, COUNSELS FOR THE
DEFENSE
OF LIBERTY(CODAL),
SEN. MA. ANA CONSUELO A.S.
MADRIGAL and FORMER
SENATORS SERGIO OSMEÑA
III and WIGBERTO E. TAÑADA,
Petitioners,

- versus -

EXECUTIVE SECRETARY
EDUARDO ERMITA AND THE
MEMBERS OF THE ANTI-
TERRORISM COUNCIL (ATC),
Respondents.

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

BAGONG ALYANSANG
MAKABAYAN-SOUTHERN
TAGALOG (BAYAN-ST),
GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN (KASAMA-
TK), MOVEMENT OF
CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL),
PEOPLES MARTYRS, G.R. No. 179157
ANAKBAYAN-ST,
PAMALAKAYA-ST,
CONFEDERATION FOR UNITY,
RECOGNITION AND
ADVANCEMENT OF
GOVERNMENT EMPLOYEES
(COURAGE-ST),
PAGKAKAISA’T UGNAYAN NG
MGA MAGBUBUKID SA
LAGUNA (PUMALAG),
SAMAHAN NG MGA
MAMAMAYAN SA TABING
RILES (SMTR-ST), LEAGUE OF
FILIPINO STUDENTS (LFS),
BAYAN MUNA-ST, KONGRESO
NG MGA MAGBUBUKID PARA
SA REPORMANG AGRARYO
KOMPRA, BIGKIS AT LAKAS
NG MGA KATUTUBO SA
TIMOG KATAGALUGAN
(BALATIK), SAMAHAN AT
UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN
SA TIMOG KATAGALUGAN
(SUMAMAKA-TK), STARTER,
LOSÑOS RURAL POOR G.R. No. 179461
ORGANIZATION FOR
PROGRESS & EQUALITY,
CHRISTIAN NIÑO LAJARA,
TEODORO REYES,
FRANCESCA B. TOLENTINO,
JANNETTE E. BARRIENTOS,
OSCAR T. LAPIDA, JR., DELFIN
DE CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE
BELTRAN,
Petitioners,
- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL
GONZALEZ, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMEN T SECRETARY
RONALDO PUNO,
DEPARTMENT OF FINCANCE
SECRETARY MARGARITO
TEVES, NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE
ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE
PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.

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

DECISION

CARPIO MORALES, J.:


Before the Court are six petitions challenging the constitutionality of
Republic Act No. 9372 (RA 9372), “An Act to Secure the State and Protect our
People from Terrorism,” otherwise known as the Human Security Act of
2007,[1] signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern


Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and
Human Rights (CTUHR), represented by their respective officers[3] who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and
prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang


Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity,
Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng
Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL),
Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS),
Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA),
Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers,[4] and joined by
concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera,
Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz,
Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr.
Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus,
Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition
docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations


Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at
para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church People’s Response (PCPR), which were
represented by their respective officers[5]who are also bringing action on their own
behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels
for the Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal,
Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and
prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other


regional chapters and organizations mostly based in the Southern Tagalog
Region,[7] and individuals[8] followed suit by filing on September 19, 2007 a
petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates
the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism


Council[9] composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded Armed Forces
of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded


President Gloria Macapagal-Arroyo and the support agencies for the Anti-
Terrorism Council like the National Intelligence Coordinating Agency, National
Bureau of Investigation, Bureau of Immigration, Office of Civil Defense,
Intelligence Service of the AFP, Anti-MoneyLaundering Center, Philippine Center
on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is


improper
Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is
clear:

Section 1. Petition for certiorari.—When any tribunal, board or


officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any
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 annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and underscoring
supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity


how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the
same.

In constitutional litigations, the power of judicial review is limited by four


exacting requisites, viz: (a) there must be an actual case or controversy; (b)
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.[10]

In the present case, the dismal absence of the first two requisites, which are
the most essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi


Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized


the rule on locus standi, thus:
Locus standi or legal standing has been 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 governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any governmental
act is invalid, but also that it sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about to
be subjected to some burdens or penalties by reason of the statute or act
complained of.

For a concerned party to be allowed to raise a constitutional question, it


must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2) the injury
is fairly traceable to the challenged action, and (3) the injury is likely to be
redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected


“communist fronts” by the government, especially the military; whereas individual
petitioners invariably invoke the “transcendental importance” doctrine and their
status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance


dispenses with the requirement that petitioner has experienced or is in actual
danger of suffering direct and personal injury, cases involving the constitutionality
of penal legislation belong to an altogether different genus of constitutional
litigation. Compelling State and societal interests in the proscription of harmful
conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.

Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA,


EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been
subjected to “close security surveillance by state security forces,” their members
followed by “suspicious persons” and “vehicles with dark windshields,” and their
offices monitored by “men with military build.” They likewise claim that they
have been branded as “enemies of the [S]tate.”[14]

Even conceding such gratuitous allegations, the Office of the Solicitor


General (OSG) correctly points out that petitioners have yet to show
any connection between the purported “surveillance” and the implementation
of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY,


SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the
Court to take judicial notice of respondents’ alleged action of tagging them as
militant organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National People’s Army (NPA). The tagging, according to
petitioners, is tantamount to the effects of proscription without following the
procedure under the law.[15] The petition of BAYAN-ST, et al. in G.R. No.
179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged “tagging” of petitioners.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settledand not doubtful or uncertain;
and (3) it must be known to be within the limits of the jurisdiction of the
court. The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said that judicial notice is
limited to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a reasonable dispute
in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.

Things of “common knowledge,” of which courts take judicial matters


coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned demonstration. Thus,
facts which are universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided, they are of
such universal notoriety and so generally understood that they may be regarded as
forming part of the common knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety of particular facts have
been judicially noticed as being matters of common knowledge. But a court
cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive
knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial


notice. Petitioners’ apprehension is insufficient to substantiate their plea. That no
specific charge or proscription under RA 9372 has been filed against them, three
years after its effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No.
178554, who merely harp as well on their supposed “link” to the CPP and
NPA. They fail to particularize how the implementation of specific provisions of
RA 9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist


organization, the United States of America[17] (US) and the European
Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of
Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the
Arroyo Administration would adopt the US and EU classification of the CPP and
NPA as terrorist organizations.[19] Such statement notwithstanding, there is yet to
be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA
9372. Again, RA 9372 has been in effect for three years now. From July 2007 up
to the present, petitioner-organizations have conducted their activities fully and
freely without any threat of, much less an actual, prosecution or proscription under
RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-


list Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and
Luzviminda Ilagan,[20] urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino
[21]
Administration of resuming peace talks with the NDF, the government is not
imminently disposed to ask for the judicial proscription of the CPP-NPA
consortium and its allied organizations.

More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.[22] Of recent development is the
filing of thefirst case for proscription under Section 17[23] of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to
the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a


prosecution under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges


filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael
Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro
Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed
rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-
Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement were
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the enactment of
RA 9372, and dismissed by this Court. For another, rebellion is defined and
punished under the Revised Penal Code. Prosecution for rebellion is not made
more imminent by the enactment of RA 9372, nor does the enactment thereof
make it easier to charge a person with rebellion, its elements not having been
altered.

Conversely, previously filed but dismissed rebellion charges bear no relation


to prospective charges under RA 9372. It cannot be overemphasized that three
years after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus
standi on their sworn duty to uphold the Constitution. The IBP zeroes in on
Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.

The mere invocation of the duty to preserve the rule of law does not,
however, suffice to clothe the IBP or any of its members with standing. [27] The
IBP failed to sufficiently demonstrate how its mandate under the assailed statute
revolts against its constitutional rights and duties. Moreover, both the IBP and
CODAL have not pointed to even a single arrest or detention effected under RA
9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been
the subject of “political surveillance,” also lacks locus standi. Prescinding from
the veracity, let alone legal basis, of the claim of “political surveillance,” the Court
finds that she has not shown even the slightest threat of being charged under RA
9372. Similarly lacking in locus standi are former Senator Wigberto
Tañada and Senator Sergio Osmeña III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372. Outside these
gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty.


Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues
they raise are of transcendental importance, “which must be settled early” and are
of “far-reaching implications,” without mention of any specific provision of RA
9372 under which they have been charged, or may be charged. Mere invocation of
human rights advocacy has nowhere been held sufficient to clothe litigants
with locus standi. Petitioners must show an actual, or immediate danger of
sustaining, direct injury as a result of the law’s enforcement. To rule otherwise
would be to corrupt the settled doctrine of locus standi, as every worthy cause is an
interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners


as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise
of the spending or taxing power of Congress,[28] whereas citizen standing must rest
on direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation
from Congress for its implementation, while none of the individual petitioner-
citizens has alleged any direct and personal interest in the implementation of the
law.

It bears to stress that generalized interests, albeit accompanied by the


assertion of a public right, do not establish locus standi. Evidence of a direct and
personal interest is key.

Petitioners fail to present an actual case


or controversy

By constitutional fiat, judicial power operates only when there is an actual


case or controversy.

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.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the


power of judicial review is limited to actual cases or controversies to be exercised
after full opportunity of argument by the parties. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.

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.[32]

Information Technology Foundation of the Philippines v.


[33]
COMELEC cannot be more emphatic:

[C]ourts 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 hand; that is, it must concern a real 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. (Emphasis and underscoring
supplied)

Thus, a petition to declare unconstitutional a law converting


the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events.[34] Similarly, a petition that fails
to allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission


on Elections[36] for failure to cite any specific affirmative action of the Commission
on Elections to implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,[37] to rule on the religious freedom claim of the therein
petitioners based merelyon a perceived potential conflict between the provisions of
the Muslim Code and those of the national law, there being no actual controversy
between real litigants.

The list of cases denying claims resting on purely hypothetical or


anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of


a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however,
is qualified by the requirement that there must be sufficient facts to enable the
Court to intelligently adjudicate the issues.[38]

Very recently, the US Supreme Court, in Holder v. Humanitarian Law


Project,[39] allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since plaintiffs faced a “credible threat of prosecution” and
“should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief.”[40] The plaintiffs therein filed an action before a federal
court to assail the constitutionality of the material support statute, 18 U.S.C.
§2339B (a) (1),[41] proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They claimed
that they intended to provide support for the humanitarian and political activities of
two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits


when an anticipatory petition clearly shows that the challenged prohibition
forbids the conductor activity that a petitioner seeks to do, as there would then
be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to


show that the challenged provisions of RA 9372 forbid constitutionally
protected conduct oractivity that they seek to do. No demonstrable threat has been
established, much less a real and existing one.

Petitioners’ obscure allegations of sporadic “surveillance” and


supposedly being tagged as “communist fronts” in no way approximate
a credible threat of prosecution. From these allegations, the Court is being lured
to render an advisory opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then again,
declaratory actions characterized by “double contingency,” where both the activity
the petitioners intend to undertake and the anticipated reaction to it of a public
official are merely theorized, lie beyond judicial review for lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to
take the present petitions out of the realm of the surreal and merely
imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused.[45] Allegations of abuse must be anchored
on real events before courts may step in to settle actual controversies involving
rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed


only in free speech cases, wherein certain rules
of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism[46] under RA 9372 in that terms like
“widespread and extraordinary fear and panic among the populace” and “coerce
the government to give in to an unlawful demand” are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-


vagueness and overbreadth find no application in the present case since these
doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not
speech.

For a jurisprudentially guided understanding of these doctrines, it is


imperative to outline the schools of thought on whether the void-for-vagueness and
overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of


limiting the application of the two doctrines to free speech cases. They particularly
citeRomualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word “intervene”


in Section 5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague
and impermissibly broad. The Court stated that “the overbreadth and the
vagueness doctrines have special application only to free-speech cases,” and are
“not appropriate for testing the validity of penal statutes.”[50] It added that, at any
rate, the challenged provision, under which the therein petitioner was charged, is
not vague.[51]

While in the subsequent case of Romualdez v. Commission on


Elections,[52] the Court stated that a facial invalidation of criminal statutes is not
appropriate, it nonetheless proceeded to conduct a vagueness analysis, and
concluded that the therein subject election offense[53] under the Voter’s
Registration Act of 1996, with which the therein petitioners were charged, is
couched in precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice
Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder
Law (Republic Act No. 7080) clear and free from ambiguity respecting the
definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines
to the concept of a “facial” invalidation as opposed to an “as-applied”
challenge. He basically postulated that allegations that a penal statute is vague and
overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the
main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which


is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application


only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are


analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its


deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case
must be examined in the light of the conduct with which the defendant is
charged.[56](Underscoring supplied.)

The confusion apparently stems from the interlocking relation of


the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not


operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks


comprehensible standards that men of common intelligence must necessarily guess
at 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.[57] The overbreadth doctrine,
meanwhile, decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine


assumes that individuals will understand what a statute prohibits and will
accordingly refrain from that behavior, even though some of it is protected.[59]
A “facial” challenge is likewise different from an “as-applied” challenge.

Distinguished from an as-applied challenge which considers


only extant facts affecting real litigants, a facial invalidation is an examination of
the entire law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally
protected speech or activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion


that the vagueness and overbreadth doctrines, as grounds for a facial challenge,
are not applicable to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either vagueness or
overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the


aim to avert the “chilling effect” on protected speech, the exercise of which should
not at all times be abridged.[62] As reflected earlier, this rationale is inapplicable
to plain penal statutes that generally bear an “in terrorem effect” in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from diminishing or
dissuading the exercise of constitutionally protected rights.[63]

The Court reiterated that there are “critical limitations by which a criminal
statute may be challenged” and “underscored that an ‘on-its-face’ invalidation of
penal statutes x x x may not be allowed.”[64]

[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially challenged. Under
no case may ordinary penal statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of penal statutes, if
the same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the allowance of a
facial challenge to attack penal statutes, such a test will impair the State’s ability to
deal with crime. If warranted, there would be nothing that can hinder an accused
from defeating the State’s power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad, notwithstanding that the law is
clear as applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth


doctrine is limited to a facial kind of challenge and, owing to the given
rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type
of invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an


exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the court to refrain
from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.[66] (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at


least two cases,[67] observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment, [68] and
that claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words.[69] In Virginia v.
Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the “transcendent
value to all society of constitutionally protected expression.”[71]

Since a penal statute may only be assailed for


being vague as applied to petitioners, a limited
vagueness analysis of the definition of “terrorism”
in RA 9372 is legally impermissible absent
an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law “on its face
and in its entirety.”[72] It stressed that “statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant.”[73]

American jurisprudence[74] instructs that “vagueness challenges that do not


involve the First Amendment must be examined in light of the specific facts of the
case at hand and not with regard to the statute's facial validity.”

For more than 125 years, the US Supreme Court has evaluated defendants’
claims that criminal statutes are unconstitutionally vague, developing a doctrine
hailed as “among the most important guarantees of liberty under law.” [75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due


process clause has been utilized in examining the constitutionality of criminal
statutes. In at least three cases,[76] the Court brought the doctrine into play in
analyzing an ordinance penalizing the non-payment of municipal tax on fishponds,
the crime of illegal recruitment punishable under Article 132(b) of the Labor Code,
and the vagrancy provision under Article 202 (2) of the Revised Penal
Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.
There is no merit in the claim that RA 9372
regulates speech so as to permit a facial
analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of
RA 9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate
crime sows and creates a condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law


penalizes speech, petitioners contend that the element of “unlawful demand” in the
definition of terrorism[77]must necessarily be transmitted through some form of
expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct,
not speech.

Before a charge for terrorism may be filed under RA 9372, there must first
be a predicate crime actually committed to trigger the operation of the key
qualifying phrases in the other elements of the crime, including the coercion of the
government to accede to an “unlawful demand.” Given the presence of the first
element, any attempt at singling out or highlighting the communicative component
of the prohibition cannot recategorize the unprotected conduct into a protected
speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it


unduly focuses on just one particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on the part of the offender
like in declaring to launch overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a deceitful transaction. An
analogy in one U.S. case[78] illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down
a sign reading “White Applicants Only” hardly means that the law should be
analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the


criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not speech. This
holds true a fortiori in the present case where the expression figures only as an
inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to
society.[79] (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because


they merely evidence a prohibited conduct.[80] Since speech is not involved here,
the Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness


analysis of the therein subject penal statute as applied to the therein petitioners
inasmuch as they were actually charged with the pertinent crimes challenged on
vagueness grounds. The Court in said cases, however, found no basis to review the
assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since
the therein plaintiffs faced a “credible threat of prosecution” and “should not be
required to await and undergo a criminal prosecution as the sole means of seeking
relief.”

As earlier reflected, petitioners have established neither an actual charge


nor a credible threat of prosecution under RA 9372. Even a limited vagueness
analysis of the assailed definition of “terrorism” is thus legally impermissible. The
Court reminds litigants that judicial power neither contemplates speculative
counseling on a statute’s future effect on hypothetical scenarios nor allows the
courts to be used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.


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

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that
the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
A consolidation of House Bill No. 4839 and Senate Bill No. 2137.
[2]
REPUBLIC ACT No. 9372, Sec. 62.
[3]
KMU Chairperson Elmer Labog, NAFLU-KMU National President Joselito V. Ustarez and NAFLU-
KMU Secretary General Antonio C. Pascual, and CTUHR Executive Director Daisy Arago.
[4]
BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA Secretary General Emerenciana de Jesus,
KMP Secretary General Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National President
Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW Chairperson Merly Grafe, LFS
National Chairperson Vencer Crisostomo, Anakbayan Secretary General Eleanor de Guzman, PAMALAKAYA
Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante Chairperson Concepcion Bragas-
Regalado, HEAD Deputy Secretary General Dr. Geneve Rivera, and Agham Chairperson Dr. Giovanni
Tapang. Grafe and Tapang, however, failed to verify the petition.
[5]
Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy Portajada for
Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado for
PCPR.
[6]
IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is represented by Atty. Noel
Neri, convenor/member.
[7]
BAYAN-ST is represented by Secretary General Arman Albarillo; Katipunan ng mga Magsasaka sa Timog
Katagulagan (KASAMA-TK) by Secretary General Orly Marcellana; Pagkakaisa ng mga Manggagawa sa Timog
Katagalugan (PAMANTIK-KMU) by Regional Secretary General Luz Baculo; GABRIELA-Southern Tagalog by
Secretary General Helen Asdolo; Organized Labor Association in Line Industries and Agriculture (OLALIA) by
Chairperson Romeo Legaspi; Southern Tagalog Region Transport Organization (STARTER) by Regional
Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional Coordinator Bayani Cambronero;
Anakbayan-ST by Regional Chairperson Pedro Santos, Jr.; LFS-ST by Spokesperson Mark Velasco;
PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng mga Katutubo sa Timog
Katagalugan (BALATIK) by Regional Auditor Aynong Abnay; Kongreso ng mga Magbubukid para sa
Repormang Agraryo (Kompra) represented by member Leng Jucutan; Martir ng Bayan with no representation;
Pagkakaisa at Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG) represented by Provincial
Secretary General Darwin Liwag; and Los Baños Rural Poor Organization for Progress and Equality represented
by Teodoro Reyes.
[8]
Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran, Edgardo Bitara Yap, Oscar Lapida, Delfin de
Claro, Sally Astera, Christian Niño Lajara, Mario Anicete, and Emmanuel Capulong.
[9]
REPUBLIC ACT No. 9372, Sec. 53.
[10]
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133 (2003).
[11]
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr, 369 U.S. 186
(1962).
[12]
G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.
[13]
360 Phil. 133 (1998).
[14]
Rollo (G.R. No. 178890), pp. 11-12.
[15]
Rollo (G.R. No. 178581), p. 17.
[16]
Vide Genesis Transport Service, Inc. v. Unyon ng Malayang Manggagawa ng Genesis Transport, G.R. No.
182114, April 5, 2010.
[17]
<http://www.state.gov/s/ct/rls/other/des/123085.htm> (last visited August 13, 2010).
[18]
<http://eur-ex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00410045.pdf> and its recent
update <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:023:0037:01:EN:HTM> on the
Council Common Position (last visited August 13, 2010).
[19]
Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also
<http://newsinfo.inquirer.net/breakingnews/nation/view/20070711-75951/Reds_target_of_terror_law> (last
visited August 16, 2010).
[20]
House Resolution No. 641.
[21]
In his State of the Nation Address, President Benigno Aquino III said: “x x x x. Tungkol naman po sa CPP-
NPA-NDF: handa na ba kayong maglaan ng kongkretong mungkahi, sa halip na pawang batikos lamang?
Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan. Mag-usap tayo.
Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin. Nananawagan ako: huwag po
natin hayaang masayang ang napakagandang pagkakataong ito upang magtipon sa ilalim ng iisang adhikain.
Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang nagpapatuloy ang barilan, patuloy din ang
pagkakagapos natin sa kahirapan. x x x x.” See: <http://www.gov.ph/2010/07/26/state-of-the-nation-address-2010>
(last visited August 25, 2010).
[22]
In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court followed the determinants cited
by Mr, Justice Florentino Feliciano in Kilosbayan v. Guingona for using the transcendental importance doctrine, to
wit: (a) the character of the funds or other assets involved in the case; (b) 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
(c) the lack of any other party with a more direct and specific interest in the questions being raised.
[23]
SEC. 17. Proscription of Terrorist Organization, Association, or Group of Persons. –Any organization,
association, or group of persons organized for the purpose of engaging in terrorism, or which, although not
organized for that purpose, actually uses acts to terrorize mentioned in this Act or to sow and create a condition of
widespread fear and panic among the populace in order to coerce the government to give in to an unlawful demand
shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and
opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a
terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.
[24]
<http://www.philstar.com/Article.aspx?articleId=607149&publicationSubCategoryId=63> (last
visited: September 1, 2010).
[25]
G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.
[26]
Rollo (G.R. No. 178581), pp. 111-125.
[27]
Supra note 22 at 896.
[28]
Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S
Ct 1942.
[29]
Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, G.R. No. 132922, April 21,
1998, 289 SCRA 337.
[30]
CONSTITUTION, Article VIII, Section 1.
[31]
63 Phil. 139, 158 (1936).
[32]
Republic Telecommunications Holding, Inc. v. Santiago, G.R. No. 140338, August 7, 2007, 529 SCRA 232,
243.
[33]
499 Phil. 281, 304-305 (2005).
[34]
Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).
[35]
Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
[36]
314 Phil. 131 (1995).
[37]
G.R. No. 89651, November 10, 1989, 179 SCRA 287.
[38]
De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing Buckley v. Valeo, 424 U.S. 1,
113-118 (1976) and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
[39]
561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.
[40]
Id. citing Babbitt v. Farm Workers, supra.
[41]
§ 2339B. Providing material support or resources to designated foreign terrorist organizations.
(a) Prohibited Activities.—
(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15
years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization
(as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in
section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in
terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and
1989).
[42]
Doe v. Bolton, 410 U.S. 179, 188-189 (1973).
[43]
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1, 10,
citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
[44]
LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW Vol. I, p.332 (3rd ed. 2000), citing Steffel v.
Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson, 421 U.S. 426 (1975).
[45]
Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 117, stating that
“all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of
power[.]”
[46]
RA 9372 defines the crime of terrorism as follows:
SEC. 3. Terrorism. – Any person who commits an act punishable under any of the
following provisions of the Revised Penal Code:

a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine
Waters);

b. Article 134 (Rebellion or Insurrection);

c. Article 134-a (Coup d’etat), including acts committed by private persons;

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal Detention);

f. Article 324 (Crimes Involving Destruction); or under

1. Presidential Decree No. 1613 (The Law on Arson);


2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste
Control Act of 1990);

3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968);

4. Republic Act No. 6235 (Anti-Hijacking Law);

5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of


1974); and,

6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal
and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in
order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall
suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No.
4103, otherwise known as the Indeterminate Sentence Law, as amended.
[47]
479 Phil. 265 (2004).
[48]
421 Phil. 290 (2001).
[49]
REPUBLIC ACT No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-
President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives,
to intervene, directly or indirectly, in any business, transaction, contract or application with the Government x x x.
(Underscoring supplied)
[50]
Romualdez v. Hon. Sandiganbayan, supra at 281.
[51]
Id. at 288.
[52]
G.R. No. 167011, April 30, 2008, 553 SCRA 370.
[53]
Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No. 8189.
[54]
Romualdez v. Commission on Elections, supra at 284.
[55]
Estrada v. Sandiganbayan, supra at 421-450.
[56]
Id. at 353-356.
[57]
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.
[58]
Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719-720.
[59]
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L.
279 (2003), note 39, citing Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev.
235, 261-262 (1994).
[60]
Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 239; Romualdez v.
Commission on Elections, supra at 418, note 35.
[61]
Estrada v. Sandiganbayan, supra at 429.
[62]
CONSTITUTION, Art. III, Sec. 4.
[63]
The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the
sovereign power of the state to maintain social order as an aspect of police power. The legislature may even
forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been
abridged. (People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476, 485).
[64]
Romualdez v. Commission on Elections, supra at 643.
[65]
Id. at 645-646.
[66]
David v. Macapagal-Arroyo, supra at 238.
[67]
Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra.
[68]
Estrada v. Sandiganbayan, supra at 354.
[69]
Id.
[70]
539 U.S. 113, 156 L. Ed. 2d 148 (2003).
[71]
Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).
[72]
Estrada v. Sandiganbayan, supra at 355.
[73]
Id.
[74]
United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119, 134 L. Ed. 2d 519
(1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States v. Powell, 423 U.S. 87,
46 L. Ed. 2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
[75]
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L.
279 (2003).
[76]
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela Piedra, G.R. No. 121777,
January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476.
[77]
Republic Act No. 9372, Sec. 3, supra.
[78]
Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 164 L.Ed 2d 156 (2006).
[79]
Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v. Hartlage,
456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an agreement [to engage in
illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the
constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into
an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a
solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in
an illegal exchange for private profit, and may properly be prohibited.
[80]
Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-
Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1315 (2005).
EN BANC

SOUTHERN HEMISPHERE G.R. No. 178552


ENGAGEMENT NETWORK,
INC., on behalf of the South-South
Network (SSN) for Non-State Present:
Armed Group Engagement, and
ATTY. SOLIMAN M. SANTOS, CORONA, C.J.,
JR., CARPIO,
Petitioners, CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE
CASTRO,
BRION,
ANTI-TERRORISM COUNCIL, PERALTA,
THE EXECUTIVE SECRETARY, BERSAMIN,
THE SECRETARY OF JUSTICE, DEL CASTILLO,
THE SECRETARY OF FOREIGN ABAD,
AFFAIRS, THE SECRETARY OF VILLARAMA, JR.,
NATIONAL DEFENSE, THE PEREZ,
SECRETARY OF THE MENDOZA, and
INTERIOR AND LOCAL SERENO, JJ.
GOVERNMENT, THE
SECRETARY OF FINANCE, THE
NATIONAL SECURITY
ADVISER, THE CHIEF OF
STAFF OF THE ARMED
FORCES OF THE PHILIPPINES,
AND THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE,
Respondents.

x ------------------------------- x Promulgated:

KILUSANG MAYO UNO (KMU), October 5, 2010


represented by its Chairperson
Elmer Labog, NATIONAL
FEDERATION OF LABOR G.R. No. 178554
UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented
by its National President Joselito V.
Ustarez and Secretary General
Antonio C. Pascual, and CENTER
FOR TRADE UNION AND
HUMAN RIGHTS, represented by
its Executive Director Daisy Arago,
Petitioners,

- versus -

HON. EDUARDO ERMITA, in his


capacity as Executive Secretary,
NORBERTO GONZALES, in his
capacity as Acting Secretary of
National Defense, HON. RAUL
GONZALES, in his capacity as
Secretary of Justice, HON.
RONALDO PUNO, in his capacity
as Secretary of the Interior and
Local Government, GEN.
HERMOGENES ESPERON, in his
capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as
PNP Chief of Staff,
Respondents.

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

BAGONG ALYANSANG
MAKABAYAN (BAYAN),
GENERAL ALLIANCE BINDING
WOMEN FOR REFORMS,
INTEGRITY, EQUALITY,
LEADERSHIP AND ACTION
(GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF
CONCERNED CITIZENS FOR G.R. No. 178581
CIVIL LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY,
RECOGNITION AND
ADVANCEMENT OF
GOVERNMENT EMPLOYEES
(COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY OF
CAVITE WORKERS, LEAGUE
OF FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG
LAKAS NG KILUSANG
MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE
OF CONCERNED TEACHERS
(ACT), MIGRANTE, HEALTH
ALLIANCE FOR DEMOCRACY
(HEAD), AGHAM, TEOFISTO
GUINGONA, JR., DR.
BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR.,
SISTER MARY JOHN
MANANSAN OSB, DEAN
CONSUELO PAZ, ATTY.
JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.),
CARLITOS SIGUION-REYNA,
DR. CAROLINA PAGADUAN-
ARAULLO, RENATO REYES,
DANILO RAMOS,
EMERENCIANA DE LESUS,
RITA BAUA, REY CLARO
CASAMBRE,
Petitioners,
- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL
GONZALES, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT SECRETARY
RONALDO PUNO.
DEPARTMENT OF FINANCE
SECRETARY MARGARITO
TEVES, NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE
ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE
PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.
x ------------------------------------ x
KARAPATAN, ALLIANCE FOR
THE ADVANCEMENT OF
PEOPLE’S RIGHTS, represented
herein by Dr. Edelina de la Paz,
and representing the following
organizations: HUSTISYA,
represented by Evangeline
Hernandez and also on her own
behalf; DESAPARECIDOS,
represented by Mary Guy
Portajada and also on her own
behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA
DETENSYON AT PARA SA
AMNESTIYA (SELDA),
represented by Donato Continente
and also on his own behalf,
ECUMENICAL MOVEMENT
FOR JUSTICE AND PEACE
(EMJP), represented by Bishop
Elmer M. Bolocon, UCCP, and
PROMOTION OF CHURCH
PEOPLE’S RESPONSE,
represented by Fr. Gilbert Sabado,
OCARM, G.R. No. 178890
Petitioners,

- versus -
GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARTY EDUARDO
ERMITA, DEPARTMENT OF
JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT SECRETARY
RONALDO PUNO,
DEPARTMENT OF FINANCE
SECRETARY MARGARITO
TEVES, NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE
ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE
PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.

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

THE INTEGRATED BAR OF


THE PHILIPPINES (IBP),
represented by Atty. Feliciano M.
Bautista, COUNSELS FOR THE
DEFENSE
OF LIBERTY(CODAL),
SEN. MA. ANA CONSUELO A.S.
MADRIGAL and FORMER
SENATORS SERGIO OSMEÑA
III and WIGBERTO E. TAÑADA,
Petitioners,

- versus -

EXECUTIVE SECRETARY
EDUARDO ERMITA AND THE
MEMBERS OF THE ANTI-
TERRORISM COUNCIL (ATC),
Respondents.

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

BAGONG ALYANSANG
MAKABAYAN-SOUTHERN
TAGALOG (BAYAN-ST),
GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN (KASAMA-
TK), MOVEMENT OF
CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL),
PEOPLES MARTYRS, G.R. No. 179157
ANAKBAYAN-ST,
PAMALAKAYA-ST,
CONFEDERATION FOR UNITY,
RECOGNITION AND
ADVANCEMENT OF
GOVERNMENT EMPLOYEES
(COURAGE-ST),
PAGKAKAISA’T UGNAYAN NG
MGA MAGBUBUKID SA
LAGUNA (PUMALAG),
SAMAHAN NG MGA
MAMAMAYAN SA TABING
RILES (SMTR-ST), LEAGUE OF
FILIPINO STUDENTS (LFS),
BAYAN MUNA-ST, KONGRESO
NG MGA MAGBUBUKID PARA
SA REPORMANG AGRARYO
KOMPRA, BIGKIS AT LAKAS
NG MGA KATUTUBO SA
TIMOG KATAGALUGAN
(BALATIK), SAMAHAN AT
UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN
SA TIMOG KATAGALUGAN
(SUMAMAKA-TK), STARTER,
LOSÑOS RURAL POOR G.R. No. 179461
ORGANIZATION FOR
PROGRESS & EQUALITY,
CHRISTIAN NIÑO LAJARA,
TEODORO REYES,
FRANCESCA B. TOLENTINO,
JANNETTE E. BARRIENTOS,
OSCAR T. LAPIDA, JR., DELFIN
DE CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE
BELTRAN,
Petitioners,
- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA,
DEPARTMENT OF JUSTICE
SECRETARY RAUL
GONZALEZ, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT OF
NATIONAL DEFENSE ACTING
SECRETARY NORBERTO
GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMEN T SECRETARY
RONALDO PUNO,
DEPARTMENT OF FINCANCE
SECRETARY MARGARITO
TEVES, NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF INVESTIGATION
(NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE
ANTI-MONEY LAUNDERING
COUNCIL (AMLC), THE
PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.

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

DECISION

CARPIO MORALES, J.:


Before the Court are six petitions challenging the constitutionality of
Republic Act No. 9372 (RA 9372), “An Act to Secure the State and Protect our
People from Terrorism,” otherwise known as the Human Security Act of
2007,[1] signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern


Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and
Human Rights (CTUHR), represented by their respective officers[3] who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and
prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang


Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity,
Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng
Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL),
Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS),
Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA),
Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers,[4] and joined by
concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera,
Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz,
Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr.
Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus,
Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition
docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations


Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at
para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church People’s Response (PCPR), which were
represented by their respective officers[5]who are also bringing action on their own
behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels
for the Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal,
Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and
prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other


regional chapters and organizations mostly based in the Southern Tagalog
Region,[7] and individuals[8] followed suit by filing on September 19, 2007 a
petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates
the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism


Council[9] composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded Armed Forces
of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded


President Gloria Macapagal-Arroyo and the support agencies for the Anti-
Terrorism Council like the National Intelligence Coordinating Agency, National
Bureau of Investigation, Bureau of Immigration, Office of Civil Defense,
Intelligence Service of the AFP, Anti-MoneyLaundering Center, Philippine Center
on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is


improper
Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is
clear:

Section 1. Petition for certiorari.—When any tribunal, board or


officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any
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 annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and underscoring
supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity


how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the
same.

In constitutional litigations, the power of judicial review is limited by four


exacting requisites, viz: (a) there must be an actual case or controversy; (b)
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.[10]

In the present case, the dismal absence of the first two requisites, which are
the most essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi


Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized


the rule on locus standi, thus:
Locus standi or legal standing has been 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 governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any governmental
act is invalid, but also that it sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about to
be subjected to some burdens or penalties by reason of the statute or act
complained of.

For a concerned party to be allowed to raise a constitutional question, it


must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2) the injury
is fairly traceable to the challenged action, and (3) the injury is likely to be
redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected


“communist fronts” by the government, especially the military; whereas individual
petitioners invariably invoke the “transcendental importance” doctrine and their
status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance


dispenses with the requirement that petitioner has experienced or is in actual
danger of suffering direct and personal injury, cases involving the constitutionality
of penal legislation belong to an altogether different genus of constitutional
litigation. Compelling State and societal interests in the proscription of harmful
conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.

Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA,


EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been
subjected to “close security surveillance by state security forces,” their members
followed by “suspicious persons” and “vehicles with dark windshields,” and their
offices monitored by “men with military build.” They likewise claim that they
have been branded as “enemies of the [S]tate.”[14]

Even conceding such gratuitous allegations, the Office of the Solicitor


General (OSG) correctly points out that petitioners have yet to show
any connection between the purported “surveillance” and the implementation
of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY,


SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the
Court to take judicial notice of respondents’ alleged action of tagging them as
militant organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National People’s Army (NPA). The tagging, according to
petitioners, is tantamount to the effects of proscription without following the
procedure under the law.[15] The petition of BAYAN-ST, et al. in G.R. No.
179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged “tagging” of petitioners.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settledand not doubtful or uncertain;
and (3) it must be known to be within the limits of the jurisdiction of the
court. The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said that judicial notice is
limited to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a reasonable dispute
in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.

Things of “common knowledge,” of which courts take judicial matters


coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned demonstration. Thus,
facts which are universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided, they are of
such universal notoriety and so generally understood that they may be regarded as
forming part of the common knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety of particular facts have
been judicially noticed as being matters of common knowledge. But a court
cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive
knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial


notice. Petitioners’ apprehension is insufficient to substantiate their plea. That no
specific charge or proscription under RA 9372 has been filed against them, three
years after its effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No.
178554, who merely harp as well on their supposed “link” to the CPP and
NPA. They fail to particularize how the implementation of specific provisions of
RA 9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist


organization, the United States of America[17] (US) and the European
Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of
Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the
Arroyo Administration would adopt the US and EU classification of the CPP and
NPA as terrorist organizations.[19] Such statement notwithstanding, there is yet to
be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA
9372. Again, RA 9372 has been in effect for three years now. From July 2007 up
to the present, petitioner-organizations have conducted their activities fully and
freely without any threat of, much less an actual, prosecution or proscription under
RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-


list Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and
Luzviminda Ilagan,[20] urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino
[21]
Administration of resuming peace talks with the NDF, the government is not
imminently disposed to ask for the judicial proscription of the CPP-NPA
consortium and its allied organizations.

More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.[22] Of recent development is the
filing of thefirst case for proscription under Section 17[23] of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to
the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a


prosecution under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges


filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael
Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro
Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed
rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-
Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement were
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the enactment of
RA 9372, and dismissed by this Court. For another, rebellion is defined and
punished under the Revised Penal Code. Prosecution for rebellion is not made
more imminent by the enactment of RA 9372, nor does the enactment thereof
make it easier to charge a person with rebellion, its elements not having been
altered.

Conversely, previously filed but dismissed rebellion charges bear no relation


to prospective charges under RA 9372. It cannot be overemphasized that three
years after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus
standi on their sworn duty to uphold the Constitution. The IBP zeroes in on
Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.

The mere invocation of the duty to preserve the rule of law does not,
however, suffice to clothe the IBP or any of its members with standing.[27] The
IBP failed to sufficiently demonstrate how its mandate under the assailed statute
revolts against its constitutional rights and duties. Moreover, both the IBP and
CODAL have not pointed to even a single arrest or detention effected under RA
9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been
the subject of “political surveillance,” also lacks locus standi. Prescinding from
the veracity, let alone legal basis, of the claim of “political surveillance,” the Court
finds that she has not shown even the slightest threat of being charged under RA
9372. Similarly lacking in locus standi are former Senator Wigberto
Tañada and Senator Sergio Osmeña III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372. Outside these
gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty.


Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues
they raise are of transcendental importance, “which must be settled early” and are
of “far-reaching implications,” without mention of any specific provision of RA
9372 under which they have been charged, or may be charged. Mere invocation of
human rights advocacy has nowhere been held sufficient to clothe litigants
with locus standi. Petitioners must show an actual, or immediate danger of
sustaining, direct injury as a result of the law’s enforcement . To rule otherwise
would be to corrupt the settled doctrine of locus standi, as every worthy cause is an
interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners


as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise
of the spending or taxing power of Congress,[28] whereas citizen standing must rest
on direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation
from Congress for its implementation, while none of the individual petitioner-
citizens has alleged any direct and personal interest in the implementation of the
law.

It bears to stress that generalized interests, albeit accompanied by the


assertion of a public right, do not establish locus standi. Evidence of a direct and
personal interest is key.

Petitioners fail to present an actual case


or controversy

By constitutional fiat, judicial power operates only when there is an actual


case or controversy.

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.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the


power of judicial review is limited to actual cases or controversies to be exercised
after full opportunity of argument by the parties. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.

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.[32]

Information Technology Foundation of the Philippines v.


[33]
COMELEC cannot be more emphatic:

[C]ourts 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 hand; that is, it must concern a real 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. (Emphasis and underscoring
supplied)

Thus, a petition to declare unconstitutional a law converting


the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events.[34] Similarly, a petition that fails
to allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission


on Elections[36] for failure to cite any specific affirmative action of the Commission
on Elections to implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,[37] to rule on the religious freedom claim of the therein
petitioners based merelyon a perceived potential conflict between the provisions of
the Muslim Code and those of the national law, there being no actual controversy
between real litigants.

The list of cases denying claims resting on purely hypothetical or


anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of


a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however,
is qualified by the requirement that there must be sufficient facts to enable the
Court to intelligently adjudicate the issues.[38]

Very recently, the US Supreme Court, in Holder v. Humanitarian Law


Project,[39] allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since plaintiffs faced a “credible threat of prosecution” and
“should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief.”[40] The plaintiffs therein filed an action before a federal
court to assail the constitutionality of the material support statute, 18 U.S.C.
§2339B (a) (1),[41] proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They claimed
that they intended to provide support for the humanitarian and political activities of
two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits


when an anticipatory petition clearly shows that the challenged prohibition
forbids the conductor activity that a petitioner seeks to do, as there would then
be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to


show that the challenged provisions of RA 9372 forbid constitutionally
protected conduct oractivity that they seek to do. No demonstrable threat has been
established, much less a real and existing one.

Petitioners’ obscure allegations of sporadic “surveillance” and


supposedly being tagged as “communist fronts” in no way approximate
a credible threat of prosecution. From these allegations, the Court is being lured
to render an advisory opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then again,
declaratory actions characterized by “double contingency,” where both the activity
the petitioners intend to undertake and the anticipated reaction to it of a public
official are merely theorized, lie beyond judicial review for lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to
take the present petitions out of the realm of the surreal and merely
imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused.[45] Allegations of abuse must be anchored
on real events before courts may step in to settle actual controversies involving
rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed


only in free speech cases, wherein certain rules
of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism[46] under RA 9372 in that terms like
“widespread and extraordinary fear and panic among the populace” and “coerce
the government to give in to an unlawful demand” are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-


vagueness and overbreadth find no application in the present case since these
doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not
speech.

For a jurisprudentially guided understanding of these doctrines, it is


imperative to outline the schools of thought on whether the void-for-vagueness and
overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of


limiting the application of the two doctrines to free speech cases. They particularly
citeRomualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word “intervene”


in Section 5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague
and impermissibly broad. The Court stated that “the overbreadth and the
vagueness doctrines have special application only to free-speech cases,” and are
“not appropriate for testing the validity of penal statutes.”[50] It added that, at any
rate, the challenged provision, under which the therein petitioner was charged, is
not vague.[51]

While in the subsequent case of Romualdez v. Commission on


Elections,[52] the Court stated that a facial invalidation of criminal statutes is not
appropriate, it nonetheless proceeded to conduct a vagueness analysis, and
concluded that the therein subject election offense[53] under the Voter’s
Registration Act of 1996, with which the therein petitioners were charged, is
couched in precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice
Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder
Law (Republic Act No. 7080) clear and free from ambiguity respecting the
definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines
to the concept of a “facial” invalidation as opposed to an “as-applied”
challenge. He basically postulated that allegations that a penal statute is vague and
overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the
main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which


is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application


only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are


analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its


deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case
must be examined in the light of the conduct with which the defendant is
charged.[56](Underscoring supplied.)

The confusion apparently stems from the interlocking relation of


the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not


operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks


comprehensible standards that men of common intelligence must necessarily guess
at 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.[57] The overbreadth doctrine,
meanwhile, decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine


assumes that individuals will understand what a statute prohibits and will
accordingly refrain from that behavior, even though some of it is protected.[59]
A “facial” challenge is likewise different from an “as-applied” challenge.

Distinguished from an as-applied challenge which considers


only extant facts affecting real litigants, a facial invalidation is an examination of
the entire law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally
protected speech or activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion


that the vagueness and overbreadth doctrines, as grounds for a facial challenge,
are not applicable to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either vagueness or
overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the


aim to avert the “chilling effect” on protected speech, the exercise of which should
not at all times be abridged.[62] As reflected earlier, this rationale is inapplicable
to plain penal statutes that generally bear an “in terrorem effect” in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from diminishing or
dissuading the exercise of constitutionally protected rights.[63]

The Court reiterated that there are “critical limitations by which a criminal
statute may be challenged” and “underscored that an ‘on-its-face’ invalidation of
penal statutes x x x may not be allowed.”[64]

[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially challenged. Under
no case may ordinary penal statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of penal statutes, if
the same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the allowance of a
facial challenge to attack penal statutes, such a test will impair the State’s ability to
deal with crime. If warranted, there would be nothing that can hinder an accused
from defeating the State’s power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad, notwithstanding that the law is
clear as applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth


doctrine is limited to a facial kind of challenge and, owing to the given
rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type
of invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an


exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the court to refrain
from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.[66] (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at


least two cases,[67] observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment, [68] and
that claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words.[69] In Virginia v.
Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the “transcendent
value to all society of constitutionally protected expression.”[71]

Since a penal statute may only be assailed for


being vague as applied to petitioners, a limited
vagueness analysis of the definition of “terrorism”
in RA 9372 is legally impermissible absent
an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law “on its face
and in its entirety.”[72] It stressed that “statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant.”[73]

American jurisprudence[74] instructs that “vagueness challenges that do not


involve the First Amendment must be examined in light of the specific facts of the
case at hand and not with regard to the statute's facial validity.”

For more than 125 years, the US Supreme Court has evaluated defendants’
claims that criminal statutes are unconstitutionally vague, developing a doctrine
hailed as “among the most important guarantees of liberty under law.”[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due


process clause has been utilized in examining the constitutionality of criminal
statutes. In at least three cases,[76] the Court brought the doctrine into play in
analyzing an ordinance penalizing the non-payment of municipal tax on fishponds,
the crime of illegal recruitment punishable under Article 132(b) of the Labor Code,
and the vagrancy provision under Article 202 (2) of the Revised Penal
Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.
There is no merit in the claim that RA 9372
regulates speech so as to permit a facial
analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of
RA 9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate
crime sows and creates a condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law


penalizes speech, petitioners contend that the element of “unlawful demand” in the
definition of terrorism[77]must necessarily be transmitted through some form of
expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct,
not speech.

Before a charge for terrorism may be filed under RA 9372, there must first
be a predicate crime actually committed to trigger the operation of the key
qualifying phrases in the other elements of the crime, including the coercion of the
government to accede to an “unlawful demand.” Given the presence of the first
element, any attempt at singling out or highlighting the communicative component
of the prohibition cannot recategorize the unprotected conduct into a protected
speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it


unduly focuses on just one particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on the part of the offender
like in declaring to launch overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a deceitful transaction. An
analogy in one U.S. case[78] illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down
a sign reading “White Applicants Only” hardly means that the law should be
analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the


criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not speech. This
holds true a fortiori in the present case where the expression figures only as an
inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to
society.[79] (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because


they merely evidence a prohibited conduct.[80] Since speech is not involved here,
the Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness


analysis of the therein subject penal statute as applied to the therein petitioners
inasmuch as they were actually charged with the pertinent crimes challenged on
vagueness grounds. The Court in said cases, however, found no basis to review the
assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since
the therein plaintiffs faced a “credible threat of prosecution” and “should not be
required to await and undergo a criminal prosecution as the sole means of seeking
relief.”

As earlier reflected, petitioners have established neither an actual charge


nor a credible threat of prosecution under RA 9372. Even a limited vagueness
analysis of the assailed definition of “terrorism” is thus legally impermissible. The
Court reminds litigants that judicial power neither contemplates speculative
counseling on a statute’s future effect on hypothetical scenarios nor allows the
courts to be used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.


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

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that
the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
A consolidation of House Bill No. 4839 and Senate Bill No. 2137.
[2]
REPUBLIC ACT No. 9372, Sec. 62.
[3]
KMU Chairperson Elmer Labog, NAFLU-KMU National President Joselito V. Ustarez and NAFLU-
KMU Secretary General Antonio C. Pascual, and CTUHR Executive Director Daisy Arago.
[4]
BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA Secretary General Emerenciana de Jesus,
KMP Secretary General Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National President
Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW Chairperson Merly Grafe, LFS
National Chairperson Vencer Crisostomo, Anakbayan Secretary General Eleanor de Guzman, PAMALAKAYA
Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante Chairperson Concepcion Bragas-
Regalado, HEAD Deputy Secretary General Dr. Geneve Rivera, and Agham Chairperson Dr. Giovanni
Tapang. Grafe and Tapang, however, failed to verify the petition.
[5]
Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy Portajada for
Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado for
PCPR.
[6]
IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is represented by Atty. Noel
Neri, convenor/member.
[7]
BAYAN-ST is represented by Secretary General Arman Albarillo; Katipunan ng mga Magsasaka sa Timog
Katagulagan (KASAMA-TK) by Secretary General Orly Marcellana; Pagkakaisa ng mga Manggagawa sa Timog
Katagalugan (PAMANTIK-KMU) by Regional Secretary General Luz Baculo; GABRIELA-Southern Tagalog by
Secretary General Helen Asdolo; Organized Labor Association in Line Industries and Agriculture (OLALIA) by
Chairperson Romeo Legaspi; Southern Tagalog Region Transport Organization (STARTER) by Regional
Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional Coordinator Bayani Cambronero;
Anakbayan-ST by Regional Chairperson Pedro Santos, Jr.; LFS-ST by Spokesperson Mark Velasco;
PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng mga Katutubo sa Timog
Katagalugan (BALATIK) by Regional Auditor Aynong Abnay; Kongreso ng mga Magbubukid para sa
Repormang Agraryo (Kompra) represented by member Leng Jucutan; Martir ng Bayan with no representation;
Pagkakaisa at Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG) represented by Provincial
Secretary General Darwin Liwag; and Los Baños Rural Poor Organization for Progress and Equality represented
by Teodoro Reyes.
[8]
Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran, Edgardo Bitara Yap, Oscar Lapida, Delfin de
Claro, Sally Astera, Christian Niño Lajara, Mario Anicete, and Emmanuel Capulong.
[9]
REPUBLIC ACT No. 9372, Sec. 53.
[10]
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133 (2003).
[11]
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr, 369 U.S. 186
(1962).
[12]
G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.
[13]
360 Phil. 133 (1998).
[14]
Rollo (G.R. No. 178890), pp. 11-12.
[15]
Rollo (G.R. No. 178581), p. 17.
[16]
Vide Genesis Transport Service, Inc. v. Unyon ng Malayang Manggagawa ng Genesis Transport, G.R. No.
182114, April 5, 2010.
[17]
<http://www.state.gov/s/ct/rls/other/des/123085.htm> (last visited August 13, 2010).
[18]
<http://eur-ex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00410045.pdf> and its recent
update <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:023:0037:01:EN:HTM> on the
Council Common Position (last visited August 13, 2010).
[19]
Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also
<http://newsinfo.inquirer.net/breakingnews/nation/view/20070711-75951/Reds_target_of_terror_law> (last
visited August 16, 2010).
[20]
House Resolution No. 641.
[21]
In his State of the Nation Address, President Benigno Aquino III said: “x x x x. Tungkol naman po sa CPP-
NPA-NDF: handa na ba kayong maglaan ng kongkretong mungkahi, sa halip na pawang batikos lamang?
Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan. Mag-usap tayo.
Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin. Nananawagan ako: huwag po
natin hayaang masayang ang napakagandang pagkakataong ito upang magtipon sa ilalim ng iisang adhikain.
Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang nagpapatuloy ang barilan, patuloy din ang
pagkakagapos natin sa kahirapan. x x x x.” See: <http://www.gov.ph/2010/07/26/state-of-the-nation-address-2010>
(last visited August 25, 2010).
[22]
In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court followed the determinants cited
by Mr, Justice Florentino Feliciano in Kilosbayan v. Guingona for using the transcendental importance doctrine, to
wit: (a) the character of the funds or other assets involved in the case; (b) 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
(c) the lack of any other party with a more direct and specific interest in the questions being raised.
[23]
SEC. 17. Proscription of Terrorist Organization, Association, or Group of Persons. –Any organization,
association, or group of persons organized for the purpose of engaging in terrorism, or which, although not
organized for that purpose, actually uses acts to terrorize mentioned in this Act or to sow and create a condition of
widespread fear and panic among the populace in order to coerce the government to give in to an unlawful demand
shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and
opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a
terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.
[24]
<http://www.philstar.com/Article.aspx?articleId=607149&publicationSubCategoryId=63> (last
visited: September 1, 2010).
[25]
G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.
[26]
Rollo (G.R. No. 178581), pp. 111-125.
[27]
Supra note 22 at 896.
[28]
Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S
Ct 1942.
[29]
Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, G.R. No. 132922, April 21,
1998, 289 SCRA 337.
[30]
CONSTITUTION, Article VIII, Section 1.
[31]
63 Phil. 139, 158 (1936).
[32]
Republic Telecommunications Holding, Inc. v. Santiago, G.R. No. 140338, August 7, 2007, 529 SCRA 232,
243.
[33]
499 Phil. 281, 304-305 (2005).
[34]
Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).
[35]
Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
[36]
314 Phil. 131 (1995).
[37]
G.R. No. 89651, November 10, 1989, 179 SCRA 287.
[38]
De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing Buckley v. Valeo, 424 U.S. 1,
113-118 (1976) and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
[39]
561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.
[40]
Id. citing Babbitt v. Farm Workers, supra.
[41]
§ 2339B. Providing material support or resources to designated foreign terrorist organizations.
(a) Prohibited Activities.—
(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15
years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization
(as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in
section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in
terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and
1989).
[42]
Doe v. Bolton, 410 U.S. 179, 188-189 (1973).
[43]
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1, 10,
citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
[44]
LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW Vol. I, p.332 (3rd ed. 2000), citing Steffel v.
Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson, 421 U.S. 426 (1975).
[45]
Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 117, stating that
“all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of
power[.]”
[46]
RA 9372 defines the crime of terrorism as follows:
SEC. 3. Terrorism. – Any person who commits an act punishable under any of the
following provisions of the Revised Penal Code:

a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine
Waters);

b. Article 134 (Rebellion or Insurrection);

c. Article 134-a (Coup d’etat), including acts committed by private persons;

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal Detention);

f. Article 324 (Crimes Involving Destruction); or under

1. Presidential Decree No. 1613 (The Law on Arson);


2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste
Control Act of 1990);

3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968);

4. Republic Act No. 6235 (Anti-Hijacking Law);

5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of


1974); and,

6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal
and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in
order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall
suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No.
4103, otherwise known as the Indeterminate Sentence Law, as amended.
[47]
479 Phil. 265 (2004).
[48]
421 Phil. 290 (2001).
[49]
REPUBLIC ACT No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-
President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives,
to intervene, directly or indirectly, in any business, transaction, contract or application with the Government x x x.
(Underscoring supplied)
[50]
Romualdez v. Hon. Sandiganbayan, supra at 281.
[51]
Id. at 288.
[52]
G.R. No. 167011, April 30, 2008, 553 SCRA 370.
[53]
Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No. 8189.
[54]
Romualdez v. Commission on Elections, supra at 284.
[55]
Estrada v. Sandiganbayan, supra at 421-450.
[56]
Id. at 353-356.
[57]
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.
[58]
Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719-720.
[59]
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L.
279 (2003), note 39, citing Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev.
235, 261-262 (1994).
[60]
Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 239; Romualdez v.
Commission on Elections, supra at 418, note 35.
[61]
Estrada v. Sandiganbayan, supra at 429.
[62]
CONSTITUTION, Art. III, Sec. 4.
[63]
The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the
sovereign power of the state to maintain social order as an aspect of police power. The legislature may even
forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been
abridged. (People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476, 485).
[64]
Romualdez v. Commission on Elections, supra at 643.
[65]
Id. at 645-646.
[66]
David v. Macapagal-Arroyo, supra at 238.
[67]
Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra.
[68]
Estrada v. Sandiganbayan, supra at 354.
[69]
Id.
[70]
539 U.S. 113, 156 L. Ed. 2d 148 (2003).
[71]
Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).
[72]
Estrada v. Sandiganbayan, supra at 355.
[73]
Id.
[74]
United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119, 134 L. Ed. 2d 519
(1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States v. Powell, 423 U.S. 87,
46 L. Ed. 2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
[75]
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L.
279 (2003).
[76]
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela Piedra, G.R. No. 121777,
January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476.
[77]
Republic Act No. 9372, Sec. 3, supra.
[78]
Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 164 L.Ed 2d 156 (2006).
[79]
Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v. Hartlage,
456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an agreement [to engage in
illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the
constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into
an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a
solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in
an illegal exchange for private profit, and may properly be prohibited.
[80]
Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-
Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1315 (2005).
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 165109 December 14, 2009

MANUEL N. MAMBA, RAYMUND P. GUZMAN and LEONIDES N. FAUSTO, Petitioners,


vs.
EDGAR R. LARA, JENERWIN C. BACUYAG, WILSON O. PUYAWAN, ALDEGUNDO Q.
CAYOSA, JR., NORMAN A. AGATEP, ESTRELLA P. FERNANDEZ, VILMER V. VILORIA,
BAYLON A. CALAGUI, CECILIA MAEVE T. LAYOS, PREFERRED VENTURES CORP., ASSET
BUILDERS CORP., RIZAL COMMERCIAL BANKING CORPORATION, MALAYAN INSURANCE
CO., and LAND BANK OF THE PHILIPPINES, Respondents.

DECISION

DEL CASTILLO, J.:

The decision to entertain a taxpayer’s suit is discretionary upon the Court. It can choose to strictly
apply the rule or take a liberal stance depending on the controversy involved. Advocates for a strict
application of the rule believe that leniency would open floodgates to numerous suits, which could
hamper the government from performing its job. Such possibility, however, is not only remote but
also negligible compared to what is at stake - "the lifeblood of the State". For this reason, when the
issue hinges on the illegal disbursement of public funds, a liberal approach should be preferred as it
is more in keeping with truth and justice.

This Petition for Review on Certiorari with prayer for a Temporary Restraining Order/Writ of
Preliminary Injunction, under Rule 45 of the Rules of Court, seeks to set aside the April 27, 2004
Order 1 of the Regional Trial Court (RTC), Branch 5, Tuguegarao City, dismissing the Petition for
Annulment of Contracts and Injunction with prayer for the issuance of a Temporary Restraining
Order/Writ of Preliminary Injunction, 2 docketed as Civil Case No. 6283. Likewise assailed in this
Petition is the August 20, 2004 Resolution 3 of RTC, Branch 1, Tuguegarao City denying the Motion
for Reconsideration of the dismissal.

Factual Antecedents

On November 5, 2001, the Sangguniang Panlalawigan of Cagayan passed Resolution No. 2001-
272 4 authorizing Governor Edgar R. Lara (Gov. Lara) to engage the services of and appoint
Preferred Ventures Corporation as financial advisor or consultant for the issuance and flotation of
bonds to fund the priority projects of the governor without cost and commitment.

On November 19, 2001, the Sangguniang Panlalawigan, through Resolution No. 290-2001, 5 ratified
the Memorandum of Agreement (MOA) 6 entered into by Gov. Lara and Preferred Ventures
Corporation. The MOA provided that the provincial government of Cagayan shall pay Preferred
Ventures Corporation a one-time fee of 3% of the amount of bonds floated.

On February 15, 2002, the Sangguniang Panlalawigan approved Resolution No. 2002-061-
A 7 authorizing Gov. Lara to negotiate, sign and execute contracts or agreements pertinent to the
flotation of the bonds of the provincial government in an amount not to exceed P500 million for the
construction and improvement of priority projects to be approved by the Sangguniang Panlalawigan.

On May 20, 2002, the majority of the members of the Sangguniang Panlalawigan of Cagayan
approved Ordinance No. 19-2002, 8 authorizing the bond flotation of the provincial government in an
amount not to exceed P500 million to fund the construction and development of the new Cagayan
Town Center. The Resolution likewise granted authority to Gov. Lara to negotiate, sign and execute
contracts and agreements necessary and related to the bond flotation subject to the approval and
ratification by the Sangguniang Panlalawigan.

On October 20, 2003, the Sangguniang Panlalawigan approved Resolution No. 350-2003 9 ratifying
the Cagayan Provincial Bond Agreements entered into by the provincial government, represented by
Gov. Lara, to wit:

a. Trust Indenture with the Rizal Commercial Banking Corporation (RCBC) – Trust and
Investment Division and Malayan Insurance Company, Inc. (MICO).

b. Deed of Assignment by way of security with the RCBC and the Land Bank of the
Philippines (LBP).

c. Transfer and Paying Agency Agreement with the RCBC – Trust and Investment Division.

d. Guarantee Agreement with the RCBC – Trust and Investment Division and MICO.

e. Underwriting Agreement with RCBC Capital Corporation.

On even date, the Sangguniang Panlalawigan also approved Resolution No. 351-2003, 10 ratifying
the Agreement for the Planning, Design, Construction, and Site Development of the New Cagayan
Town Center 11 entered into by the provincial government, represented by Gov. Lara and Asset
Builders Corporation, represented by its President, Mr. Rogelio P. Centeno.

On May 20, 2003, Gov. Lara issued the Notice of Award to Asset Builders Corporation, giving to the
latter the planning, design, construction and site development of the town center project for a fee
of P213,795,732.39. 12

Proceedings before the Regional Trial Court

On December 12, 2003, petitioners Manuel N. Mamba, Raymund P. Guzman and Leonides N.
Fausto filed a Petition for Annulment of Contracts and Injunction with prayer for a Temporary
Restraining Order/Writ of Preliminary Injunction 13 against Edgar R. Lara, Jenerwin C. Bacuyag,
Wilson O. Puyawan, Aldegundo Q. Cayosa, Jr., Norman A. Agatep, Estrella P. Fernandez, Vilmer V.
Viloria, Baylon A. Calagui, Cecilia Maeve T. Layos, Preferred Ventures Corporation, Asset Builders
Corporation, RCBC, MICO and LBP. 1avv phi 1

At the time of the filing of the petition, Manuel N. Mamba was the Representative of the 3rd
Congressional District of the province of Cagayan 14 while Raymund P. Guzman and Leonides N.
Fausto were members of theSangguniang Panlalawigan of Cagayan. 15

Edgar R. Lara was sued in his capacity as governor of Cagayan, 16 while Jenerwin C. Bacuyag,
Wilson O. Puyawan, Aldegundo Q. Cayosa, Jr., Norman A. Agatep, Estrella P. Fernandez, Vilmer V.
Viloria, Baylon A. Calagui and Cecilia Maeve T. Layos were sued as members of the Sangguniang
Panlalawigan of Cagayan. 17Respondents Preferred Ventures Corporation, Asset Builders
Corporation, RCBC, MICO and LBP were all impleaded as indispensable or necessary parties.

Respondent Preferred Ventures Corporation is the financial advisor of the province of Cagayan
regarding the bond flotation undertaken by the province. 18 Respondent Asset Builders Corporation
was awarded the right to plan, design, construct and develop the proposed town
center. 19 Respondent RCBC, through its Trust and Investment Division, is the trustee of the seven-
year bond flotation undertaken by the province for the construction of the town center, 20 while
respondent MICO is the guarantor. 21 Lastly, respondent LBP is the official depositary bank of the
province. 22

In response to the petition, public respondents filed an Answer with Motion to Dismiss, 23 raising the
following defenses: a) petitioners are not the proper parties or they lack locus standi in court; b) the
action is barred by the rule on state immunity from suit and c) the issues raised are not justiciable
questions but purely political.

For its part, respondent Preferred Ventures Corporation filed a Motion to Dismiss 24 on the following
grounds: a) petitioners have no cause of action for injunction; b) failure to join an indispensable
party; c) lack of personality to sue and d) lack of locus standi. Respondent MICO likewise filed a
Motion to Dismiss 25 raising the grounds of lack of cause of action and legal standing. Respondent
RCBC similarly argued in its Motion to Dismiss 26 that: a) petitioners are not the real parties-in-
interest or have no legal standing to institute the petition; b) petitioners have no cause of action as
the flotation of the bonds are within the right and power of both respondent RCBC and the province
of Cagayan and c) the viability of the construction of a town center is not a justiciable question but a
political question.

Respondent Asset Builders Corporation, on the other hand, filed an Answer 27 interposing special
and affirmative defenses of lack of legal standing and cause of action. Respondent LBP also filed an
Answer 28 alleging in the main that petitioners have no cause of action against it as it is not an
indispensable party or a necessary party to the case.

Two days after the filing of respondents’ respective memoranda on the issues raised during the
hearing of the special and/or affirmative defenses, petitioners filed a Motion to Admit Amended
Petition 29 attaching thereto the amended petition. 30 Public respondents opposed the motion for the
following reasons: 1) the motion was belatedly filed; 2) the Amended Petition is not sufficient in form
and in substance; 3) the motion is patently dilatory and 4) the Amended Petition was filed to cure the
defect in the original petition. 31

Petitioners also filed a Consolidated Opposition to the Motion to Dismiss 32 followed by supplemental
pleadings 33in support of their prayer for a writ of preliminary injunction.

On April 27, 2004, the RTC issued the assailed Order denying the Motion to Admit Amended Petition
and dismissing the petition for lack of cause of action. It ruled that:

The language of Secs. 2 & 3 of Rule 10 of the 1997 Rules of Civil Procedure dealing on the filing of
an amended pleading is quite clear. As such, the Court rules that the motion was belatedly filed. The
granting of leave to file amended pleadings is a matter peculiarly within the sound discretion of the
trial court. But the rule allowing amendments to pleadings is subject to the general but inflexible
limitation that the cause of action or defense shall not be substantially changed or the theory of the
case altered to the prejudice of the other party (Avecilla vs. Yatcvo, 103 Phil. 666).
On the assumption that the controversy presents justiciable issues which this Court may take
cognizance of, petitioners in the present case who presumably presented legitimate interests in the
controversy are not parties to the questioned contract. Contracts produce effect as between the
parties who execute them. Only a party to the contract can maintain an action to enforce the
obligations arising under said contract (Young vs. CA, 169 SCRA 213). Since a contract is binding
only upon the parties thereto, a third person cannot ask for its rescission if it is in fraud of his rights.
One who is not a party to a contract has no rights under such contract and even if the contrary may
be voidable, its nullity can be asserted only by one who is a party thereto; a third person would have
absolutely no personality to ask for the annulment (Wolfson vs. Estate of Martinez, 20 Phil. 340;
Ibañez vs. Hongkong & Shanghai Bank, 22 Phil. 572; Ayson vs. CA, G.R. Nos. L-6501 & 6599, May
21, 1955).

It was, however, held that a person who is not a party obliged principally or subsidiarily in a contract
may exercise an action for nullity of the contract if he is prejudiced in his rights with respect to one of
the contracting parties and can show the detriment which would positively result to him from the
contract in which he had no intervention (Bañez vs. CA, 59 SCRA 15; Anyong Hsan vs. CA, 59
SCRA 110, 112-113; Leodovica vs. CA, 65 SCRA 154-155). In the case at bar, petitioners failed to
show that they were prejudiced in their rights [or that a] detriment x x x would positively result to
them. Hence, they lack locus standi in court.

xxxx

To the mind of the Court, procedural matters in the present controversy may be dispensed with,
stressing that the instant case is a political question, a question which the court cannot, in any
manner, take judicial cognizance. Courts will not interfere with purely political questions because of
the principle of separation of powers (Tañada vs. Cuenco, 103 Phil. 1051). Political questions are
those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been delegated to the legislative or [to
the] executive branch of the government (Nuclear Free Phils. Coalition vs. NPC, 141 SCRA 307
(1986); Torres vs. Gonzales, 152 SCRA 272; Citizen’s Alliance for Consumer Protection vs. Energy
Regulatory Board, G.R. No. 78888-90, June 23, 1988).

The citation made by the provincial government[, to] which this Court is inclined to agree, is that the
matter falls under the discretion of another department, hence the decision reached is in the
category of a political question and consequently may not be the subject of judicial jurisdiction (Cruz
in Political Law, 1998 Ed., page 81) is correct.

It is [a] well-recognized principle that purely administrative and discretionary functions may not be
interfered with by the courts (Adm. Law Test & Cases, 2001 Ed., De Leon, De Leon, Jr.).

The case therefore calls for the doctrine of ripeness for judicial review. This determines the point at
which courts may review administrative action. The basic principle of ripeness is that the judicial
machinery should be conserved for problems which are real and present or imminent and should not
be squandered on problems which are future, imaginary or remote. This case is not ripe for judicial
determination since there is no imminently x x x substantial injury to the petitioners.

In other words, the putting up of the New Cagayan Town Center by the province over the land fully
owned by it and the concomitant contracts entered into by the same is within the bounds of its
corporate power, an undertaking which falls within the ambit of its discretion and therefore a purely
political issue which is beyond the province of the court x x x. [Consequently, the court cannot,] in
any manner, take judicial cognizance over it. The act of the provincial government was in pursuance
of the mandate of the Local Government Code of 1991.
xxxx

Indeed, adjudication of the procedural issues presented for resolution by the present action would be
a futile exercise in exegesis.

What defeats the plea of the petitioners for the issuance of a writ of preliminary injunction is the fact
that their averments are merely speculative and founded on conjectures. An injunction is not
intended to protect contingent or future rights nor is it a remedy to enforce an abstract right (Cerebo
vs. Dictado, 160 SCRA 759; Ulang vs. CA, 225 SCRA 637). An injunction, whether preliminary or
final, will not issue to protect a right not in in esse and which may never arise, or to restrain an act
which does not give rise to a cause of action. The complainant’s right on title, moreover, must be
clear and unquestioned [since] equity, as a rule, will not take cognizance of suits to establish title
and will not lend its preventive aid by injunction where the complainant’s title or right is doubtful or
disputed. The possibility of irreparable damage, without proof of violation of an actual existing right,
is no ground for injunction being a mere damnum, absque injuria (Talisay-Silay Milling Company,
Inc. vs. CFI of Negros Occidental, et. al. 42 SCRA 577, 582).

xxxx

For lack of cause of action, the case should be dismissed.

The facts and allegations [necessarily] suggest also that this court may dismiss the case for want of
jurisdiction.

The rule has to be so because it can motu propio dismiss it as its only jurisdiction is to dismiss it if it
has no jurisdiction. This is in line with the ruling in Andaya vs. Abadia, 46 SCAD 1036, G.R. No.
104033, Dec. 27, 1993 where the court may dismiss a complaint even without a motion to dismiss or
answer.

Upon the foregoing considerations, the case is hereby dismissed without costs.

SO ORDERED. 34

Petitioners filed a Motion for Reconsideration 35 to which respondents filed their respective
Oppositions. 36Petitioners then filed a Motion to Inhibit, which the court granted. Accordingly, the
case was re-raffled to Branch 1 of the RTC of Tuguegarao City. 37

On August 20, 2004, Branch 1 of the RTC of Tuguegarao City issued a Resolution denying
petitioners’ plea for reconsideration. The court found the motion to be a mere scrap of paper as the
notice of hearing was addressed only to the Clerk of Court in violation of Section 5, Rule 15 of the
Rules of Court. As to the merits, the court sustained the findings of Branch 5 that petitioners lack
legal standing to sue and that the issue involved is political.

Issues

Hence, the present recourse where petitioners argue that:

A. The lower court decided a question of substance in a way not in accord with law and with
the applicable decision of the Supreme Court, and
B. The lower court has so far departed from the accepted and usual course of judicial
proceedings as to call for an exercise of the power of supervision in that:

I. It denied locus standi to petitioners;

II. [It] determined that the matter of contract entered into by the provincial
government is in the nature of a political question;

III. [It] denied the admission of Amended Petition; and

IV. [It] found a defect of substance in the petitioners’ Motion for Reconsideration. 38

Our Ruling

The petition is partially meritorious.

Petitioners have legal standing to sue as taxpayers

A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or that
the public money is being deflected to any improper purpose, or that there is wastage of public funds
through the enforcement of an invalid or unconstitutional law. 39 A person suing as a taxpayer,
however, must show that the act complained of directly involves the illegal disbursement of public
funds derived from taxation. 40 He must also prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct injury because of the
enforcement of the questioned statute or contract. 41 In other words, for a taxpayer’s suit to prosper,
two requisites must be met: (1) public funds derived from taxation are disbursed by a political
subdivision or instrumentality and in doing so, a law is violated or some irregularity is committed and
(2) the petitioner is directly affected by the alleged act. 42

In light of the foregoing, it is apparent that contrary to the view of the RTC,

a taxpayer need not be a party to the contract to challenge its validity. 43 As long as taxes are
involved, people have a right to question contracts entered into by the government.

In this case, although the construction of the town center would be primarily sourced from the
proceeds of the bonds, which respondents insist are not taxpayer’s money, a government support in
the amount of P187 million would still be spent for paying the interest of the bonds. 44 In fact, a Deed
of Assignment 45 was executed by the governor in favor of respondent RCBC over the Internal
Revenue Allotment (IRA) and other revenues of the provincial government as payment and/or
security for the obligations of the provincial government under the Trust Indenture Agreement dated
September 17, 2003. Records also show that on March 4, 2004, the governor requested
the Sangguniang Panlalawigan to appropriate an amount of P25 million for the interest of the
bond. 46Clearly, the first requisite has been met.

As to the second requisite, the court, in recent cases, has relaxed the stringent "direct injury test"
bearing in mind that locus standi is a procedural technicality. 47 By invoking "transcendental
importance", "paramount public interest", or "far-reaching implications", ordinary citizens and
taxpayers were allowed to sue even if they failed to show direct injury. 48 In cases where serious
legal issues were raised or where public expenditures of millions of pesos were involved, the court
did not hesitate to give standing to taxpayers. 49
We find no reason to deviate from the jurisprudential trend.

To begin with, the amount involved in this case is substantial. Under the various agreements entered
into by the governor, which were ratified by the Sangguniang Panlalawigan, the provincial
government of Cagayan would incur the following costs: 50

Compensation to Preferred Ventures - P 6,150,000.00


(3% of P205M) 51 Resolution No. 290-2001

Management and Underwriting Fees - 3,075,000.00


(1.5% of P205M) 52

Documentary Tax - 1,537,500.00

(0.75% of P205M) 53
Guarantee Fee 54 - 7,350,000.00

Construction and Design of town center 55 - 213,795,732.39


Total Cost - P231,908,232.39

What is more, the provincial government would be shelling out a total amount of P187 million for the
period of seven years by way of subsidy for the interest of the bonds. Without a doubt, the resolution
of the present petition is of paramount importance to the people of Cagayan who at the end of the
day would bear the brunt of these agreements.

Another point to consider is that local government units now possess more powers, authority and
resources at their disposal, 56 which in the hands of unscrupulous officials may be abused and
misused to the detriment of the public. To protect the interest of the people and to prevent taxes
from being squandered or wasted under the guise of government projects, a liberal approach must
therefore be adopted in determining locus standi in public suits.

In view of the foregoing, we are convinced that petitioners have sufficient standing to file the present
suit. Accordingly, they should be given the opportunity to present their case before the RTC.

Having resolved the core issue, we shall now proceed to the remaining issues.

The controversy involved is justiciable

A political question is a question of policy, which is to be decided by the people in their sovereign
capacity or by the legislative or the executive branch of the government to which full discretionary
authority has been delegated.57

In filing the instant case before the RTC, petitioners seek to restrain public respondents from
implementing the bond flotation and to declare null and void all contracts related to the bond flotation
and construction of the town center. In the petition before the RTC, they alleged grave abuse of
discretion and clear violations of law by public respondents. They put in issue the overpriced
construction of the town center; the grossly disadvantageous bond flotation; the irrevocable
assignment of the provincial government’s annual regular income, including the IRA, to respondent
RCBC to cover and secure the payment of the bonds floated; and the lack of consultation and
discussion with the community regarding the proposed project, as well as a proper and legitimate
bidding for the construction of the town center.

Obviously, the issues raised in the petition do not refer to the wisdom but to the legality of the acts
complained of. Thus, we find the instant controversy within the ambit of judicial review. Besides,
even if the issues were political in nature, it would still come within our powers of review under the
expanded jurisdiction conferred upon us by Section 1, Article VIII of the Constitution, which includes
the authority to determine whether grave abuse of discretion amounting to excess or lack of
jurisdiction has been committed by any branch or instrumentality of the government. 58

The Motion to Admit Amended Petition was properly denied

However, as to the denial of petitioners’ Motion to Admit Amended Petition, we find no reason to
reverse the same. The inclusion of the province of Cagayan as a petitioner would not only change
the theory of the case but would also result in an absurd situation. The provincial government, if
included as a petitioner, would in effect be suing itself considering that public respondents are being
sued in their official capacity.

In any case, there is no need to amend the petition because petitioners, as we have said, have legal
standing to sue as taxpayers.

Section 5, Rule 15 of the Rules of Court was substantially complied with

This brings us to the fourth and final issue.

A perusal of the Motion for Reconsideration filed by petitioners would show that the notice of hearing
was addressed only to the Clerk of Court in violation of Section 5, Rule 15 of the Rules of Court,
which requires the notice of hearing to be addressed to all parties concerned. This defect, however,
did not make the motion a mere scrap of paper. The rule is not a ritual to be followed blindly. 59 The
purpose of a notice of hearing is simply to afford the adverse parties a chance to be heard before a
motion is resolved by the court. 60 In this case, respondents were furnished copies of the motion, and
consequently, notified of the scheduled hearing. Counsel for public respondents in fact moved for
the postponement of the hearing, which the court granted. 61 Moreover, respondents were afforded
procedural due process as they were given sufficient time to file their respective comments or
oppositions to the motion. From the foregoing, it is clear that the rule requiring notice to all parties
was substantially complied with. 62 In effect, the defect in the Motion for Reconsideration was cured.

We cannot overemphasize that procedural rules are mere tools to aid the courts in the speedy, just
and inexpensive resolution of cases. 63 Procedural defects or lapses, if negligible, should be excused
in the higher interest of justice as technicalities should not override the merits of the case. Dismissal
of cases due to technicalities should also be avoided to afford the parties the opportunity to present
their case. Courts must be reminded that the swift unclogging of the dockets although a laudable
objective must not be done at the expense of substantial justice. 64

WHEREFORE, the instant Petition is PARTIALLY GRANTED. The April 27, 2004 Order of Branch 5
and the August 20, 2004 Resolution of Branch 1 of the Regional Trial Court of Tuguegarao City are
hereby REVERSED and SET ASIDE insofar as the dismissal of the petition is concerned.
Accordingly, the case is hereby REMANDED to the court a quo for further proceedings.

SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO*
Associate Justice
Chairperson

CONCHITA CARPIO MORALES** TERESITA J. LEONARDO-DE CASTRO***


Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s attestation, it
is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

*
Per Special Order No. 775 dated November 3, 2009.

**
In lieu of Justice Arturo D. Brion who is on leave per Special Order No. 807 dated
December 7, 2009.

***
Additional member per Special Order No. 776 dated November 3, 2009.

1
Rollo, pp. 221-230; penned by Judge Elmo M. Alameda.

2
Id. at 36-54.

3
Id. at 256 -258; penned by Judge Jimmy H. F. Luczon, Jr.
4
Id. at 55-56.

5
Id. at 57-59.

6
Id. at 60-63.

7
Id. at 64-65.

8
Id. at 66-68.

9
Id. at 69-70.

10
Id. at 71-72.

11
Id. at 78-90.

12
Id. at 440.

13
Id. at 36-54.

14
Id. at 36.

15
Id. at 36-37.

16
Id. at 37.

17
Id.

18
Id. at 437.

19
Id.

20
Id.

21
Id.

22
Id.

23
Id. at 126-141.

24
Id. at 142-150.

25
Id. at 179-189.

26
Id. at 163-171.

27
Id. at 151-162.

28
Id. at 172-178.
29
Id. at 98-100.

30
Id. at 101-118.

31
Id. at 119-125.

32
Id. at 190-204.

33
Id. at 205-215 and 216-220.

34
Id. at 224-230.

35
Id. at 231-241.

36
Id. at 242-246 and 247-254.

37
Id. at 718.

38
Id. at 15.

39
Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 505, 518-519.

40
Bayan (Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623, 647 (2000).

41
Bugnay Construction and Development Corporation v. Judge Laron, 257 Phil. 245, 256
(1989).

42
Bagatsing v. San Juan, 329 Phil. 8, 13 (1996).

43
Abaya v. Ebdane, Jr., G.R. No. 167919, February 14, 2007, 515 SCRA 720, 758.

44
Rollo, p. 129; Answer with Motion to Dismiss of public respondents.

45
Id. at 93-95.

46
Id. at 215.

47
Garcillano v. House of Representatives Committees on Public Information, Public Order
and Safety, National Defense and Security, Information and Communications Technology,
and Suffrage and Electoral Reforms, G.R. Nos. 1708338 & 179275, December 23, 2008, 575
SCRA 170, 185.

48
David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489
& 171424, May 3, 2006, 489 SCRA 160.

49
See Constantino, Jr. v. Cuisia, supra at note 39; Abaya v. Ebdane, Jr., supra at note
43; Province of North Cotabato v. Government of the Republic of the Philippines Peace
Panel on Ancestral Domain (GRP),G.R. Nos. 183591, 183752, 183893, 183951 & 183962,
October 14, 2008, 568 SCRA 402; Garcillano v. House of Representatives Committees on
Public Information, Public Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms, supra at note 47.

50
See Rollo, p. 11.

51
Id. at 58; Resolution No. 290-2001.

52
Id. at 73; Underwriting Agreement, paragraph 7.1.

53
Id. at 74; Underwriting Agreement, paragraph 7.3.

54
Id. at 77; Guarantee Agreement, paragraph 3.1.

55
Id. at 83; Agreement for the Planning, Design, Construction and Site Development of the
New Cagayan Town Center, paragraph 7.1.

56
Republic Act No. 7160, Section 2, otherwise known as the "Local Government Code of
1991".

57
Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform, G.R. Nos. 78742, 79310, 79744 & 79777, July 14, 1989, 175 SCRA 343, 377.

58
Daza v. Singson, G.R. No. 86344, December 21, 1989, 180 SCRA 496, 507.

59
KKK Foundation, Inc. v. Calderon-Bargas, G.R. No. 163785, December 27, 2007, 541
SCRA 432, 441.

60
Vlason Enterprises Corporation v. Court of Appeals, 369 Phil. 269, 299 (1999).

61
Rollo, p. 255.

62
See Philippine National Bank v. Paneda, G.R. No. 149236, February 14, 2007, 515 SCRA
639, 652.

63
Incon Industrial Corporation v. Court of Appeals, G.R. No. 161871, July 24, 2007, 528
SCRA 139, 144.

64
Tacloban II Neighborhood Association, Inc. v. Office of the President, G.R. No. 168561,
September 26, 2008, 566 SCRA 493, 510.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 167614 March 24, 2009

ANTONIO M. SERRANO, Petitioner,


vs.
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC., Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire families and communities out of
poverty. Their earnings have built houses, provided health care, equipped schools and planted the
seeds of businesses. They have woven together the world by transmitting ideas and knowledge from
country to country. They have provided the dynamic human link between cultures, societies and
economies. Yet, only recently have we begun to understand not only how much international
migration impacts development, but how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-Moon


Global Forum on Migration and Development
Brussels, July 10, 20071

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section
10, Republic Act (R.A.) No. 8042,2 to wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.

x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but
exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal
dismissal to their lump-sum salary either for the unexpired portion of their employment contract "or
for three months for every year of the unexpired term, whichever is less" (subject clause). Petitioner
claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their
contract, deprives them of equal protection and denies them due process.

By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December
8, 2004 Decision3 and April 1, 2005 Resolution4 of the Court of Appeals (CA), which applied the
subject clause, entreating this Court to declare the subject clause unconstitutional.
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd.
(respondents) under a Philippine Overseas Employment Administration (POEA)-approved Contract
of Employment with the following terms and conditions:

Duration of contract 12 months

Position Chief Officer


Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week

Overtime US$700.00 per month


Vacation leave with pay 7.00 days per month5

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded
employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon
the assurance and representation of respondents that he would be made Chief Officer by the end of
April 1998.6

Respondents did not deliver on their promise to make petitioner Chief Officer.7 Hence, petitioner
refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998.8

Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March
19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and
seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23)
days.

Petitioner filed with the Labor Arbiter (LA) a Complaint9 against respondents for constructive
dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down
as follows:

May US$ 413.90


27/31,
1998 (5
days)
incl.
Leave
pay
June 2,590.00
01/30,
1998
July 2,590.00
01/31,
1998
August 2,590.00
01/31,
1998
Sept. 2,590.00
01/30,
1998
Oct. 2,590.00
01/31,
1998
Nov. 2,590.00
01/30,
1998
Dec. 2,590.00
01/31,
1998
Jan. 2,590.00
01/31,
1999
Feb. 2,590.00
01/28,
1999
Mar. 1,640.00
1/19,
1999
(19
days)
incl.
leave
pay
--------------------------------------------------------------------------------
25,382.23
Amount
adjusted
to chief
mate's
salary
(March 1,060.5010
19/31,
1998 to
April
1/30,
1998) +
----------------------------------------------------------------------------------------------
TOTAL US$ 26,442.7311
CLAIM

as well as moral and exemplary damages and attorney's fees.


The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal
and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered declaring that the


dismissal of the complainant (petitioner) by the respondents in the above-entitled case was
illegal and the respondents are hereby ordered to pay the complainant [petitioner], jointly and
severally, in Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS
(US $8,770.00), representing the complainant’s salary for three (3) months of the
unexpired portion of the aforesaid contract of employment. 1avvphi1

The respondents are likewise ordered to pay the complainant [petitioner], jointly and
severally, in Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00),12 representing the
complainant’s claim for a salary differential. In addition, the respondents are hereby ordered
to pay the complainant, jointly and severally, in Philippine Currency, at the exchange rate
prevailing at the time of payment, the complainant’s (petitioner's) claim for attorney’s fees
equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee
under this Decision.

The claims of the complainant for moral and exemplary damages are hereby DISMISSED for
lack of merit.

All other claims are hereby DISMISSED.

SO ORDERED.13 (Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on


the salary period of three months only -- rather than the entire unexpired portion of nine
months and 23 days of petitioner's employment contract - applying the subject clause.
However, the LA applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic
salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month,
vacation leave pay = US$2,590.00/compensation per month."14

Respondents appealed15 to the National Labor Relations Commission (NLRC) to question


the finding of the LA that petitioner was illegally dismissed.

Petitioner also appealed16 to the NLRC on the sole issue that the LA erred in not applying the
ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations
Commission17 that in case of illegal dismissal, OFWs are entitled to their salaries for the
unexpired portion of their contracts.18

In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:

WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby
ordered to pay complainant, jointly and severally, in Philippine currency, at the prevailing rate
of exchange at the time of payment the following:

1. Three (3) months salary


$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorney’s fees 424.50
TOTAL US$4,669.50

The other findings are affirmed.

SO ORDERED.19

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing
the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not
provide for the award of overtime pay, which should be proven to have been actually performed, and
for vacation leave pay."20

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality
of the subject clause.21 The NLRC denied the motion.22

Petitioner filed a Petition for Certiorari23 with the CA, reiterating the constitutional challenge against
the subject clause.24 After initially dismissing the petition on a technicality, the CA eventually gave
due course to it, as directed by this Court in its Resolution dated August 7, 2003 which granted the
petition for certiorari, docketed as G.R. No. 151833, filed by petitioner.

In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the
applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner.25

His Motion for Reconsideration26 having been denied by the CA,27 petitioner brings his cause to this
Court on the following grounds:

The Court of Appeals and the labor tribunals have decided the case in a way not in accord with
applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker
back wages equal to the unexpired portion of his contract of employment instead of limiting it to
three (3) months

II

In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their
interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals
gravely erred in law when it failed to discharge its judicial duty to decide questions of substance not
theretofore determined by the Honorable Supreme Court, particularly, the constitutional issues
raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and
arbitrarily limits payment of the award for back wages of overseas workers to three (3) months.

III
Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the
Court of Appeals gravely erred in law in excluding from petitioner’s award the overtime pay and
vacation pay provided in his contract since under the contract they form part of his salary.28

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and
sickly, and he intends to make use of the monetary award for his medical treatment and
medication.29 Required to comment, counsel for petitioner filed a motion, urging the court to allow
partial execution of the undisputed monetary award and, at the same time, praying that the
constitutional question be resolved.30

Considering that the parties have filed their respective memoranda, the Court now takes up the full
merit of the petition mindful of the extreme importance of the constitutional question raised therein.

On the first and second issues

The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not
disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all
three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to
petitioner by reason of his illegal dismissal.

Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at
the monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of
nine months and 23 days of his employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the
US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of
US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his
employment contract, computed at the monthly rate of US$2,590.00.31

The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom
of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate
employment period and a fixed salary package.32 It also impinges on the equal protection clause, for
it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount
of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to
the same monetary award for local workers when their dismissal is declared illegal; that the
disparate treatment is not reasonable as there is no substantial distinction between the two
groups;33 and that it defeats Section 18,34 Article II of the Constitution which guarantees the
protection of the rights and welfare of all Filipino workers, whether deployed locally or overseas.35

Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with
existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are
conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of affected
OFWs.36

Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no
other purpose but to benefit local placement agencies. He marks the statement made by the Solicitor
General in his Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the
event that jurisdiction over the foreign employer is not acquired by the court or if the foreign
employer reneges on its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect
them and to promote their continued helpful contribution in deploying Filipino migrant workers,
liability for money claims was reduced under Section 10 of R.A. No. 8042. 37(Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause
sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better off
than local employers because in cases involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only three months of the unexpired
employment contract while local employers are liable for the full lump-sum salaries of their
employees. As petitioner puts it:

In terms of practical application, the local employers are not limited to the amount of backwages they
have to give their employees they have illegally dismissed, following well-entrenched and
unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be limited to
giving the illegally dismissed migrant workers the maximum of three (3) months unpaid salaries
notwithstanding the unexpired term of the contract that can be more than three (3) months.38

Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of
the salaries and other emoluments he is entitled to under his fixed-period employment contract.39

The Arguments of Respondents

In their Comment and Memorandum, respondents contend that the constitutional issue should not
be entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at
the earliest opportunity, which was when he filed an appeal before the NLRC.40

The Arguments of the Solicitor General

The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect on July 15, 1995, its
provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042
having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms
of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon
by the parties.42

Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their
employment, such that their rights to monetary benefits must necessarily be treated differently. The
OSG enumerates the essential elements that distinguish OFWs from local workers: first, while local
workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers,
over whom it is difficult for our courts to acquire jurisdiction, or against whom it is almost impossible
to enforce judgment; and second, as held in Coyoca v. National Labor Relations Commission43 and
Millares v. National Labor Relations Commission,44 OFWs are contractual employees who can never
acquire regular employment status, unlike local workers who are or can become regular employees.
Hence, the OSG posits that there are rights and privileges exclusive to local workers, but not
available to OFWs; that these peculiarities make for a reasonable and valid basis for the
differentiated treatment under the subject clause of the money claims of OFWs who are illegally
dismissed. Thus, the provision does not violate the equal protection clause nor Section 18, Article II
of the Constitution.45
Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted
to mitigate the solidary liability of placement agencies for this "redounds to the benefit of the migrant
workers whose welfare the government seeks to promote. The survival of legitimate placement
agencies helps [assure] the government that migrant workers are properly deployed and are
employed under decent and humane conditions."46

The Court's Ruling

The Court sustains petitioner on the first and second issues.

When the Court is called upon to exercise its power of judicial review of the acts of its co-equals,
such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case
or controversy involving a conflict of rights susceptible of judicial determination;47 (2) that the
constitutional question is raised by a proper party48 and at the earliest opportunity;49 and (3) that the
constitutional question is the very lis mota of the case,50otherwise the Court will dismiss the case or
decide the same on some other ground.51

Without a doubt, there exists in this case an actual controversy directly involving petitioner who is
personally aggrieved that the labor tribunals and the CA computed his monetary award based on the
salary period of three months only as provided under the subject clause.

The constitutional challenge is also timely. It should be borne in mind that the requirement that a
constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the
pleadings before acompetent court, such that, if the issue is not raised in the pleadings before that
competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be
considered on appeal.52 Records disclose that the issue on the constitutionality of the subject clause
was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial
Reconsideration with said labor tribunal,53 and reiterated in his Petition forCertiorari before the
CA.54 Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA
which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that
merely performs a quasi-judicial function – its function in the present case is limited to determining
questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving
such questions in accordance with the standards laid down by the law itself;55 thus, its foremost
function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its
provisions. The CA, on the other hand, is vested with the power of judicial review or the power to
declare unconstitutional a law or a provision thereof, such as the subject clause.56Petitioner's
interposition of the constitutional issue before the CA was undoubtedly seasonable. The CA was
therefore remiss in failing to take up the issue in its decision.

The third condition that the constitutional issue be critical to the resolution of the case likewise
obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired
portion of his 12-month employment contract, and not just for a period of three months, strikes at the
very core of the subject clause.

Thus, the stage is all set for the determination of the constitutionality of the subject clause.

Does the subject clause violate Section 10,


Article III of the Constitution on non-impairment
of contracts?

The answer is in the negative.


Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the
term of his employment and the fixed salary package he will receive57 is not tenable.

Section 10, Article III of the Constitution provides:

No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted have only a prospective
operation,58and cannot affect acts or contracts already perfected;59 however, as to laws already in
existence, their provisions are read into contracts and deemed a part thereof.60 Thus, the non-
impairment clause under Section 10, Article II is limited in application to laws about to be enacted
that would in any way derogate from existing acts or contracts by enlarging, abridging or in any
manner changing the intention of the parties thereto.

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of
the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued
that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties.
Rather, when the parties executed their 1998 employment contract, they were deemed to have
incorporated into it all the provisions of R.A. No. 8042.

But even if the Court were to disregard the timeline, the subject clause may not be declared
unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in
the exercise of the police power of the State to regulate a business, profession or calling, particularly
the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the
dignity and well-being of OFWs wherever they may be employed.61 Police power legislations
adopted by the State to promote the health, morals, peace, education, good order, safety, and
general welfare of the people are generally applicable not only to future contracts but even to those
already in existence, for all private contracts must yield to the superior and legitimate measures
taken by the State to promote public welfare.62

Does the subject clause violate Section 1,


Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:

No person shall be deprived of life, liberty, or property without due process of law nor shall any
person be denied the equal protection of the law.

Section 18,63 Article II and Section 3,64 Article XIII accord all members of the labor sector, without
distinction as to place of deployment, full protection of their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to
economic security and parity: all monetary benefits should be equally enjoyed by workers of similar
category, while all monetary obligations should be borne by them in equal degree; none should be
denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in
like circumstances.65
Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it
sees fit, a system of classification into its legislation; however, to be valid, the classification must
comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the
purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all
members of the class.66

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification
embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification
needs only be shown to be rationally related to serving a legitimate state interest;67 b) the middle-tier
or intermediate scrutiny in which the government must show that the challenged classification serves
an important state interest and that the classification is at least substantially related to serving that
interest;68 and c) strict judicial scrutiny69 in which a legislative classification which impermissibly
interferes with the exercise of a fundamental right70 or operates to the peculiar disadvantage of a
suspect class71 is presumed unconstitutional, and the burden is upon the government to prove that
the classification is necessary to achieve a compelling state interest and that it is the least
restrictive means to protect such interest.72

Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications73 based
on race74 or gender75 but not when the classification is drawn along income categories.76

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee
Association, Inc. v. Bangko Sentral ng Pilipinas,77 the constitutionality of a provision in the charter of
the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for
maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the
rank-and-file employees of other GFIs had been exempted from the SSL by their respective
charters. Finding that the disputed provision contained a suspect classification based on salary
grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the
constitutionality of said provision. More significantly, it was in this case that the Court revealed the
broad outlines of its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates a fundamental right,
or prejudices persons accorded special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and
require a stricter and more exacting adherence to constitutional limitations. Rational basis should not
suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution
requires a stricter judicial scrutiny finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At
best, they are persuasive and have been used to support many of our decisions. We should not
place undue and fawning reliance upon them and regard them as indispensable mental crutches
without which we cannot come to our own decisions through the employment of our own
endowments. We live in a different ambience and must decide our own problems in the light of our
own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with
our own concept of law and justice. Our laws must be construed in accordance with the intention of
our own lawmakers and such intent may be deduced from the language of each law and the context
of other local legislation related thereto. More importantly, they must be construed to serve our own
public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our
public interest is distinct and different from others.
xxxx

Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of
effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble
proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society.
The command to promote social justice in Article II, Section 10, in "all phases of national
development," further explicitated in Article XIII, are clear commands to the State to take affirmative
action in the direction of greater equality. x x x [T]here is thus in the Philippine Constitution no lack of
doctrinal support for a more vigorous state effort towards achieving a reasonable measure of
equality.

Our present Constitution has gone further in guaranteeing vital social and economic rights to
marginalized groups of society, including labor. Under the policy of social justice, the law bends over
backward to accommodate the interests of the working class on the humane justification that those
with less privilege in life should have more in law. And the obligation to afford protection to labor is
incumbent not only on the legislative and executive branches but also on the judiciary to translate
this pledge into a living reality. Social justice calls for the humanization of laws and the equalization
of social and economic forces by the State so that justice in its rational and objectively secular
conception may at least be approximated.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative
power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion
would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the
perpetuation of prejudice against persons favored by the Constitution with special
protection, judicial scrutiny ought to be more strict. A weak and watered down view would call
for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution
and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a
private person or the government itself or one of its instrumentalities. Oppressive acts will be struck
down regardless of the character or nature of the actor.

xxxx

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-
employee status. It is akin to a distinction based on economic class and status, with the higher
grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now
receive higher compensation packages that are competitive with the industry, while the poorer, low-
salaried employees are limited to the rates prescribed by the SSL. The implications are quite
disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and opportunities for career
advancement - are given higher compensation packages to entice them to stay. Considering that
majority, if not all, the rank-and-file employees consist of people whose status and rank in life are
less and limited, especially in terms of job marketability, it is they - and not the officers - who have
the real economic and financial need for the adjustment . This is in accord with the policy of the
Constitution "to free the people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all." Any act of Congress that runs
counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass
muster. (Emphasis supplied)

Imbued with the same sense of "obligation to afford protection to labor," the Court in the present
case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a
suspect classification prejudicial to OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs.
However, a closer examination reveals that the subject clause has a discriminatory intent against,
and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis-à-vis OFWs with
employment contracts ofone year or more;

Second, among OFWs with employment contracts of more than one year; and

Third, OFWs vis-à-vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis-à-vis OFWs with employment
contracts of one year or more

As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v. National Labor Relations
Commission79 (Second Division, 1999) that the Court laid down the following rules on the application
of the periods prescribed under Section 10(5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an
illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired
portion of his employment contract or three (3) months’ salary for every year of the unexpired
term, whichever is less, comes into play only when the employment contract concerned has a
term of at least one (1) year or more. This is evident from the words "for every year of the
unexpired term" which follows the words "salaries x x x for three months."To follow
petitioners’ thinking that private respondent is entitled to three (3) months salary only simply because
it is the lesser amount is to completely disregard and overlook some words used in the statute while
giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in
interpreting a statute, care should be taken that every part or word thereof be given effect since the
law-making body is presumed to know the meaning of the words employed in the statue and to have
used them advisedly. Ut res magis valeat quam pereat.80 (Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but
was awarded his salaries for the remaining 8 months and 6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on
Section 10(5). One was Asian Center for Career and Employment System and Services v. National
Labor Relations Commission(Second Division, October 1998),81 which involved an OFW who was
awarded a two-year employment contract,but was dismissed after working for one year and two
months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary
covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the
award to SR3,600.00 equivalent to his three months’ salary, this being the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just,
valid or authorized cause is entitled to his salary for the unexpired portion of his employment
contract or for three (3) months for every year of the unexpired term, whichever is less.

In the case at bar, the unexpired portion of private respondent’s employment contract is eight (8)
months. Private respondent should therefore be paid his basic salary corresponding to three (3)
months or a total of SR3,600.82

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third
Division, December 1998),83 which involved an OFW (therein respondent Erlinda Osdana) who was
originally granted a 12-month contract, which was deemed renewed for another 12 months. After
serving for one year and seven-and-a-half months, respondent Osdana was illegally dismissed, and
the Court awarded her salaries for the entire unexpired portion of four and one-half months of her
contract.

The Marsaman interpretation of Section 10(5) has since been adopted in the following cases:

Case Title Contract Period of Unexpired Period Applied in


Period Service Period the Computation
of the Monetary
Award

Skippers v. 6 months 2 months 4 months 4 months


Maguad84
Bahia Shipping 9 months 8 months 4 months 4 months
v. Reynaldo
Chua 85

Centennial 9 months 4 months 5 months 5 months


Transmarine v.
dela Cruz l86

Talidano v. 12 months 3 months 9 months 3 months


Falcon87

Univan v. CA88 12 months 3 months 9 months 3 months


Oriental v. CA89 12 months more than 2 10 months 3 months
months

PCL v. NLRC90 12 months more than 2 more or less 9 3 months


months months
Olarte v. 12 months 21 days 11 months and 9 3 months
Nayona91 days
JSS v.Ferrer92 12 months 16 days 11 months and 3 months
24 days

Pentagon v. 12 months 9 months and 2 months and 23 2 months and 23


Adelantar93 7 days days days
Phil. Employ v. 12 months 10 months 2 months Unexpired portion
Paramio, et
al.94

Flourish 2 years 26 days 23 months and 4 6 months or 3


Maritime v. days months for each
Almanzor 95 year of contract
Athenna 1 year, 10 1 month 1 year, 9 months 6 months or 3
Manpower v. months and and 28 days months for each
Villanos 96 28 days year of contract

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The
first category includes OFWs with fixed-period employment contracts of less than one year; in case
of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of their contract.
The second category consists of OFWs with fixed-period employment contracts of one year or more;
in case of illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the
unexpired portion of their contracts.

The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent
OFW worked for only 2 months out of his 6-month contract, but was awarded his salaries for the
remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for
about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the
unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who
had worked for a longer period of 3 months out of their 12-month contracts before being illegally
dismissed were awarded their salaries for only 3 months.

To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an
employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical
OFW-B with an employment contract of 15 months with the same monthly salary rate of
US$1,000.00. Both commenced work on the same day and under the same employer, and were
illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to
US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-B
will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion
of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as
the US$3,000.00 is the lesser amount.

The disparity becomes more aggravating when the Court takes into account jurisprudence
that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,97 illegally dismissed OFWs, no
matter how long the period of their employment contracts, were entitled to their salaries for the entire
unexpired portions of their contracts. The matrix below speaks for itself:

Case Title Contract Period of Unexpired Period Applied in the


Period Service Period Computation of the
Monetary Award
ATCI v. CA, et 2 years 2 months 22 months 22 months
al.98

Phil. Integrated 2 years 7 days 23 months 23 months and 23


v. NLRC99 and 23 days days
JGB v. NLC100 2 years 9 months 15 months 15 months
Agoy v. 2 years 2 months 22 months 22 months
NLRC101

EDI v. NLRC, 2 years 5 months 19 months 19 months


et al.102
Barros v. 12 months 4 months 8 months 8 months
NLRC, et al.103
Philippine 12 months 6 months 5 months and 5 months and 18 days
Transmarine v. and 22 days 18 days
Carilla104

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired
portions thereof, were treated alike in terms of the computation of their monetary benefits in case of
illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their employment contracts.

The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation
of the money claims of illegally dismissed OFWs based on their employment periods, in the
process singling out one category whose contracts have an unexpired portion of one year or more
and subjecting them to the peculiar disadvantage of having their monetary awards limited to their
salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing
the other category from such prejudice, simply because the latter's unexpired contracts fall short of
one year.

Among OFWs With Employment Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject clause, the Court now has
misgivings on the accuracy of the Marsaman interpretation.

The Court notes that the subject clause "or for three (3) months for every year of the unexpired
term, whichever is less" contains the qualifying phrases "every year" and "unexpired term." By its
ordinary meaning, the word "term" means a limited or definite extent of time.105 Corollarily, that
"every year" is but part of an "unexpired term" is significant in many ways: first, the unexpired term
must be at least one year, for if it were any shorter, there would be no occasion for such unexpired
term to be measured by every year; and second, the original term must be more than one year, for
otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently,
the more decisive factor in the determination of when the subject clause "for three (3) months
forevery year of the unexpired term, whichever is less" shall apply is not the length of the original
contract period as held in Marsaman,106 but the length of the unexpired portion of the contract period
-- the subject clause applies in cases when the unexpired portion of the contract period is at least
one year, which arithmetically requires that the original contract period be more than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose
contract periods are for more than one year: those who are illegally dismissed with less than one
year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof,
while those who are illegally dismissed with one year or more remaining in their contracts shall be
covered by the subject clause, and their monetary benefits limited to their salaries for three months
only.
To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court
assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of
US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th
month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the
subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be
entitled, not to US$12,000,00 or the latter's total salaries for the 12 months unexpired portion of the
contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-
month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the
subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be
entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month
unexpired portion.

OFWs vis-à-vis Local Workers


With Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary
awards of illegally dismissed OFWs was in place. This uniform system was applicable even to local
workers with fixed-term employment.107

The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of
Commerce (1888),108 to wit:

Article 299. If the contracts between the merchants and their shop clerks and employees should
have been made of a fixed period, none of the contracting parties, without the consent of the other,
may withdraw from the fulfillment of said contract until the termination of the period agreed upon.

Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the
exception of the provisions contained in the following articles.

In Reyes v. The Compañia Maritima,109 the Court applied the foregoing provision to determine the
liability of a shipping company for the illegal discharge of its managers prior to the expiration of their
fixed-term employment. The Court therein held the shipping company liable for the salaries of its
managers for the remainder of their fixed-term employment.

There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of
Commerce which provides:

Article 605. If the contracts of the captain and members of the crew with the agent should be for a
definite period or voyage, they cannot be discharged until the fulfillment of their contracts, except for
reasons of insubordination in serious matters, robbery, theft, habitual drunkenness, and damage
caused to the vessel or to its cargo by malice or manifest or proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,110 in

which the Court held the shipping company liable for the salaries and subsistence allowance of its
illegally dismissed employees for the entire unexpired portion of their employment contracts.

While Article 605 has remained good law up to the present,111 Article 299 of the Code of Commerce
was replaced by Art. 1586 of the Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a
certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the
contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or" in Article 1586 as a
conjunctive "and" so as to apply the provision to local workers who are employed for a time certain
although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia Palomar v.
Hotel de France Company.113 And in both Lemoine and Palomar, the Court adopted the general
principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to
recover damages to the extent of the amount stipulated to be paid to them by the terms of their
contract. On the computation of the amount of such damages, the Court in Aldaz v. Gay114 held:

The doctrine is well-established in American jurisprudence, and nothing has been brought to our
attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully
discharged it is his duty to seek other employment of the same kind in the same community, for the
purpose of reducing the damages resulting from such wrongful discharge. However, while this is the
general rule, the burden of showing that he failed to make an effort to secure other employment of a
like nature, and that other employment of a like nature was obtainable, is upon the defendant. When
an employee is wrongfully discharged under a contract of employment his prima facie damage is the
amount which he would be entitled to had he continued in such employment until the termination of
the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School
District No. 2, 98 Mich., 43.)115 (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment:
Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3
(Contract for a Piece of Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil
Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies
available to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay
Radio & Telegraph Co., Inc. v. Rich,117 the Court carried over the principles on the payment of
damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving
the illegal discharge of a local worker whose fixed-period employment contract was entered into in
1952, when the new Civil Code was already in effect.118

More significantly, the same principles were applied to cases involving overseas Filipino workers
whose fixed-term employment contracts were illegally terminated, such as in First Asian Trans &
Shipping Agency, Inc. v. Ople,119involving seafarers who were illegally discharged. In Teknika Skills
and Trade Services, Inc. v. National Labor Relations Commission,120 an OFW who was illegally
dismissed prior to the expiration of her fixed-period employment contract as a baby sitter, was
awarded salaries corresponding to the unexpired portion of her contract. The Court arrived at the
same ruling in Anderson v. National Labor Relations Commission,121 which involved a foreman hired
in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine
months on the job -- the Court awarded him salaries corresponding to 15 months, the unexpired
portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission,122 a
Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining
period of his 12-month contract after he was wrongfully discharged. Finally, in Vinta Maritime Co.,
Inc. v. National Labor Relations Commission,123 an OFW whose 12-month contract was illegally cut
short in the second month was declared entitled to his salaries for the remaining 10 months of his
contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were
illegally discharged were treated alike in terms of the computation of their money claims: they were
uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the
enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed
OFWs with an unexpired portion of one year or more in their employment contract have since been
differently treated in that their money claims are subject to a 3-month cap, whereas no such
limitation is imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect classification in that, in the
computation of the monetary benefits of fixed-term employees who are illegally discharged, it
imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more
in their contracts, but none on the claims of other OFWs or local workers with fixed-term
employment. The subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by the Constitution, the
Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a
compelling state interest through the least restrictive means.

What constitutes compelling state interest is measured by the scale of rights and powers arrayed in
the Constitution and calibrated by history.124 It is akin to the paramount interest of the state125 for
which some individual liberties must give way, such as the public interest in safeguarding health or
maintaining medical standards,126 or in maintaining access to information on matters of public
concern.127

In the present case, the Court dug deep into the records but found no compelling state interest that
the subject clause may possibly serve.

The OSG defends the subject clause as a police power measure "designed to protect the
employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic], Filipino
seafarers have better chance of getting hired by foreign employers." The limitation also protects the
interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in
"termination pay."128

The OSG explained further:

Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the
event that jurisdiction over the foreign employer is not acquired by the court or if the foreign
employer reneges on its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect
them and to promote their continued helpful contribution in deploying Filipino migrant workers,
liability for money are reduced under Section 10 of RA 8042.

This measure redounds to the benefit of the migrant workers whose welfare the government seeks
to promote. The survival of legitimate placement agencies helps [assure] the government that
migrant workers are properly deployed and are employed under decent and humane
conditions.129 (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception
of the state interest sought to be served by the subject clause.

The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in
sponsorship of House Bill No. 14314 (HB 14314), from which the law originated;130 but the speech
makes no reference to the underlying reason for the adoption of the subject clause. That is only
natural for none of the 29 provisions in HB 14314 resembles the subject clause.
On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:

Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of
the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to
hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising
out of an employer-employee relationship or by virtue of the complaint, the claim arising out of an
employer-employee relationship or by virtue of any law or contract involving Filipino workers for
overseas employment including claims for actual, moral, exemplary and other forms of damages.

The liability of the principal and the recruitment/placement agency or any and all claims under this
Section shall be joint and several.

Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of


damages under this Section shall not be less than fifty percent (50%) of such money
claims: Provided, That any installment payments, if applicable, to satisfy any such compromise or
voluntary settlement shall not be more than two (2) months. Any compromise/voluntary agreement in
violation of this paragraph shall be null and void.

Non-compliance with the mandatory period for resolutions of cases provided under this Section shall
subject the responsible officials to any or all of the following penalties:

(1) The salary of any such official who fails to render his decision or resolution within the
prescribed period shall be, or caused to be, withheld until the said official complies therewith;

(2) Suspension for not more than ninety (90) days; or

(3) Dismissal from the service with disqualification to hold any appointive public office for five
(5) years.

Provided, however, That the penalties herein provided shall be without prejudice to any liability
which any such official may have incurred under other existing laws or rules and regulations as a
consequence of violating the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money
claims.

A rule on the computation of money claims containing the subject clause was inserted and
eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the
rationale of the subject clause in the transcripts of the "Bicameral Conference Committee
(Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate
Bill No. 2077 and House Bill No. 14314)." However, the Court finds no discernible state interest, let
alone a compelling one, that is sought to be protected or advanced by the adoption of the subject
clause.

In fine, the Government has failed to discharge its burden of proving the existence of a compelling
state interest that would justify the perpetuation of the discrimination against OFWs under the
subject clause.

Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the
employment of OFWs by mitigating the solidary liability of placement agencies, such callous and
cavalier rationale will have to be rejected. There can never be a justification for any form of
government action that alleviates the burden of one sector, but imposes the same burden on another
sector, especially when the favored sector is composed of private businesses such as placement
agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the
Constitution commands. The idea that private business interest can be elevated to the level of a
compelling state interest is odious.

Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement
agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be
employed to achieve that purpose without infringing on the constitutional rights of OFWs.

The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based
Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring
foreign employers who default on their contractual obligations to migrant workers and/or their
Philippine agents. These disciplinary measures range from temporary disqualification to preventive
suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of
Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring
foreign employers.

Resort to these administrative measures is undoubtedly the less restrictive means of aiding local
placement agencies in enforcing the solidary liability of their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right
of petitioner and other OFWs to equal protection. 1avvphi1

Further, there would be certain misgivings if one is to approach the declaration of the
unconstitutionality of the subject clause from the lone perspective that the clause directly violates
state policy on labor under Section 3,131Article XIII of the Constitution.

While all the provisions of the 1987 Constitution are presumed self-executing,132 there are some
which this Court has declared not judicially enforceable, Article XIII being one,133 particularly
Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor Relations
Commission,134 has described to be not self-actuating:

Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as
self-executing in the sense that these are automatically acknowledged and observed without need
for any enabling legislation. However, to declare that the constitutional provisions are enough to
guarantee the full exercise of the rights embodied therein, and the realization of ideals therein
expressed, would be impractical, if not unrealistic. The espousal of such view presents the
dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to
labor" and "security of tenure", when examined in isolation, are facially unqualified, and the broadest
interpretation possible suggests a blanket shield in favor of labor against any form of removal
regardless of circumstance. This interpretation implies an unimpeachable right to continued
employment-a utopian notion, doubtless-but still hardly within the contemplation of the framers.
Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure
the protection and promotion, not only the rights of the labor sector, but of the employers' as well.
Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own
conclusion to approximate at least the aims of the Constitution.

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive
enforceable rightto stave off the dismissal of an employee for just cause owing to the failure to
serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the
provisions on social justice require legislative enactments for their enforceability.135 (Emphasis
added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for
the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk
opening the floodgates of litigation to every worker or union over every conceivable violation of so
broad a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on the working class any
actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution
urges protection through executive or legislative action and judicial recognition. Its utility is best
limited to being an impetus not just for the executive and legislative departments, but for the judiciary
as well, to protect the welfare of the working class. And it was in fact consistent with that
constitutional agenda that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee
Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate Justice now Chief Justice
Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on
the perpetuation of prejudice against persons favored by the Constitution with special protection --
such as the working class or a section thereof -- the Court may recognize the existence of a suspect
classification and subject the same to strict judicial scrutiny.

The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central
Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless
apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause.
Article XIII, by itself, without the application of the equal protection clause, has no life or force of its
own as elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's
right to substantive due process, for it deprives him of property, consisting of monetary benefits,
without any existing valid governmental purpose.136

The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the
entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a better
chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is
nothing in the text of the law or the records of the deliberations leading to its enactment or the
pleadings of respondent that would indicate that there is an existing governmental purpose for the
subject clause, or even just a pretext of one.

The subject clause does not state or imply any definitive governmental purpose; and it is for that
precise reason that the clause violates not just petitioner's right to equal protection, but also her right
to substantive due process under Section 1,137 Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired
period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence
prior to the enactment of R.A. No. 8042.

On the Third Issue

Petitioner contends that his overtime and leave pay should form part of the salary basis in the
computation of his monetary award, because these are fixed benefits that have been stipulated into
his contract.

Petitioner is mistaken.
The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like
petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract
of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and
other bonuses; whereas overtime pay is compensation for all work "performed" in excess of the
regular eight hours, and holiday pay is compensation for any work "performed" on designated rest
days and holidays.

By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and
holiday pay in the computation of petitioner's monetary award, unless there is evidence that he
performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela
Cruz,138

However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in
Cagampan v. National Labor Relations Commission, to wit:

The rendition of overtime work and the submission of sufficient proof that said was actually
performed are conditions to be satisfied before a seaman could be entitled to overtime pay which
should be computed on the basis of 30% of the basic monthly salary. In short, the contract provision
guarantees the right to overtime pay but the entitlement to such benefit must first be established.

In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is
unwarranted since the same is given during the actual service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every
year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No.
8042 is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005
Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his
salaries for the entire unexpired portion of his employment contract consisting of nine months and 23
days computed at the rate of US$1,400.00 per month.

No costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO


Associate Justice Associate Justice

ANTONIO T. CARPIO RENATO C. CORONA


Associate Justice Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA


Associate Justice Associate Justice

(On leave)
PRESBITERO J. VELASCO, JR.
MINITA V. CHICO-NAZARIO
Associate Justice
Associate Justice

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


Associate Justice Associate Justice

(see concurring opinion)


DIOSDADO M. PERALTA
ARTURO D. BRION
Associate Justice
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

1
http://www.un.org/News/Press/docs/2007/sgsm11084.doc.htm.

2
Migrant Workers and Overseas Filipinos Act of 1995, effective July 15, 1995.

3
Penned by Associate Justice Andres B. Reyes, Jr. and concurred in by Associate Justices
Lucas P. Bersamin and Celia C. Librea-Leagogo; rollo, p. 231.

4
Id. at 248.

5
Rollo, p. 57.

6
Id. at 58.

7
Id. at 59.

8
Id. at 48.

9
Id. at 55.

10
According to petitioner, this amount represents the pro-rated difference between the salary
of US$2,590.00 per month which he was supposed to receive as Chief Officer from March
19, 1998 to April 30, 1998 and the salary of US$1,850.00 per month which he was actually
paid as Second Officer for the same period. See LA Decision, rollo, pp. 107 and 112.

11
Position Paper, id. at 53-54.

12
The LA awarded petitioner US$45.00 out of the US$1,480.00 salary differential to which
petitioner is entitled in view of his having received from respondents US$1,435.00 as
evidenced by receipts marked as Annexes "F", "G" and "H", id. at 319-321.

13
Id. at 114.

14
Rollo, pp. 111-112.

15
Id. at 124.

16
Id. at 115.

17
G.R. No. 129584, December 3, 1998, 299 SCRA 608.

18
Appeal Memorandum, rollo, p. 121.

19
Id. at 134.

20
NLRC Decision, rollo, p. 140.

21
Id. at 146-150.

22
Id. at 153.

23
Id. at 155.

24
Id. at 166-177.

25
CA Decision, id. at 239-241.

26
Id. at 242.

27
Id. at 248.

28
Petition, rollo, p. 28.

29
Id. at 787.

30
Id. at 799.

31
Rollo, p. 282

32
Memorandum for Petitioner, id. at 741-742.

33
Id. at 746-753.
34
Section 18. The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.

35
Rollo, pp. 763-766.

36
Petition, id. at 735.

37
Memorandum of the Solicitor General, rollo, p. 680.

38
Memorandum for Petitioner, id. at 755.

39
Id. at 761-763.

40
Rollo, pp. 645-646 and 512-513.

41
Alfredo L. Benipayo was Solicitor General at the time the Comment was filed. Antonio
Eduardo B. Nachura (now an Associate Justice of the Supreme Court) was Solicitor General
when the Memorandum was filed.

42
Memorandum of the Solicitor General, id. at 662-665.

43
G.R. No. 113658, March 31, 1995, 243 SCRA 190.

44
G.R. No. 110524, July 29, 2002, 385 SCRA 306.

45
Memorandum of the Solicitor General, rollo, pp. 668-678.

46
Id. at 682.

47
The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel on Ancestral Domain, G.R. No. 183591 October 14, 2008.

48
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005,
449 SCRA 1.

49
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

50
Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004, 432 SCRA 136.

51
Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No. 149719, June
21, 2007, 525 SCRA 198; Marasigan v. Marasigan, G.R. No. 156078, March 14, 2008, 548
SCRA 409.

52
Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49.

53
Rollo, p. 145.

54
Id. at 166.
55
Smart Communications, Inc. v. National Telecommunications Commission, G.R. No.
151908, August 12, 2003, 408 SCRA 678.

56
Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214, September
19, 2006, 502 SCRA 295.

57
Memorandum for Petitioner, rollo, pp. 741-742.

58
Ortigas & Co., Ltd. v. Court of Appeals, G.R. No. 126102, December 4, 2000, 346
SCRA 748.

59
Picop Resources, Inc. v. Base Metals Mineral Resources Corporation, G.R. No. 163509,
December 6, 2006, 510 SCRA 400.

60
Walker v. Whitehead, 83 U.S. 314 (1873); Wood v. Lovett, 313 U.S. 362, 370
(1941); Intrata-Assurance Corporation v. Republic of the Philippines, G.R. No. 156571, July
9, 2008; Smart Communications, Inc. v. City of Davao, G.R. No. 155491, September 16,
2008.

61
Executive Secretary v. Court of Appeals, G.R. No. 131719, May 25, 2004, 429 SCRA 81,
citing JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, August
5, 1996, 260 SCRA 319.

62
Ortigas & Co., Ltd. v. Court of Appeals, supra note 58.

63
Section 18. The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.

64
Section 3, The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.

65
See City of Manila v. Laguio, G.R. No. 118127, April 12, 2005, 455 SCRA 308; Pimentel III
v. Commission on Elections, G.R. No. 178413, March 13, 2008, 548 SCRA 169.

66
League of Cities of the Philippines v. Commission on Elections G.R. No. 176951,
November 18, 2008;Beltran v. Secretary of Health, G.R. No. 139147,November 25, 2005,
476 SCRA 168.

67
Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R.
No. 78742, July 14, 1989, 175 SCRA 343.

68
Los Angeles v. Almeda Books, Inc., 535 U.S. 425 (2002); Craig v. Boren, 429 US 190
(1976).

69
There is also the "heightened scrutiny" standard of review which is less demanding than
"strict scrutiny" but more demanding than the standard rational relation test. Heightened
scrutiny has generally been applied to cases that involve discriminatory classifications based
on sex or illegitimacy, such as in Plyler v. Doe, 457 U.S. 202, where a heightened scrutiny
standard was used to invalidate a State's denial to the children of illegal aliens of the free
public education that it made available to other residents.
70
America v. Dale, 530 U.S. 640 (2000); Parents Involved in Community Schools v. Seattle
School District No. 1, 551 U.S. (2007); http://www.supremecourtus.gov/opinions/06pdf/05-
908.pdf.

71
Adarand Constructors, Inc. v. Peña, 515 US 230 (1995).

72
Grutter v. Bollinger, 539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984).

73
The concept of suspect classification first emerged in the famous footnote in the opinion of
Justice Harlan Stone in U.S. v. Carolene Products Co., 304 U.S. 144 (1938), the full text of
which footnote is reproduced below:

There may be narrower scope for operation of the presumption of constitutionality


when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten amendments, which are deemed equally
specific when held to be embraced within the Fourteenth. See Stromberg v.
California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political


processes which can ordinarily be expected to bring about repeal of undesirable
legislation is to be subjected to more exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment than are most other types of legislation.
On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v.
Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near
v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v.
American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with
political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274
U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S.
242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition
of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes
directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national,
Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v.
Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v.
Condon, supra: whether prejudice against discrete and insular minorities may be a
special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4
Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and
cases cited.

74
Korematsu v. United States, 323 U.S. 214 (1944); Regents of the University of California v.
Bakke, 438 U.S. 265 (1978).

75
Frontiero v. Richardson, 411 U.S. 677 (1973); U.S. v. Virginia, 518 U.S. 515 (1996).

76
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

77
G.R. No. 148208, December 15, 2004, 446 SCRA 299.
78
Rollo, pp. 727 and 735.

79
371 Phil. 827 (1999).

80
Id. at 840-841.

81
G.R. No. 131656, October 20, 1998, 297 SCRA 727.

82
Id.

83
Supra note 17.

84
G.R. No. 166363, August 15, 2006, 498 SCRA 639.

85
G.R. No. 162195, April 8, 2008, 550 SCRA 600.

86
G.R. No. 180719, August 22, 2008.

87
G.R. No. 172031, July 14, 2008, 558 SCRA 279.

88
G.R. No. 157534, June 18, 2003 (Resolution).

89
G.R. No. 153750, January 25, 2006, 480 SCRA 100.

90
G.R. No. 148418, July 28, 2005, 464 SCRA 314.

91
G.R. No. 148407, November 12, 2003, 415 SCRA 720.

92
G.R. No. 156381, October 14, 2005, 473 SCRA 120.

93
G.R. No. 157373, July 27, 2004, 435 SCRA 342.

94
G.R. No. 144786, April 15, 2004, 427 SCRA 732.

95
G.R. No. 177948, March 14, 2008, 548 SCRA 712.

96
G.R. No. 151303, April 15, 2005, 456 SCRA 313.

97
Asian Center v. National Labor Relations Commission, supra note 81.

98
G.R. No. 143949, August 9, 2001, 362 SCRA 571.

99
G.R. No. 123354, November 19, 1996, 264 SCRA 418.

100
G.R. No. 109390, March 7, 1996, 254 SCRA 457.

101
G.R. No. 112096, January 30, 1996, 252 SCRA 588.

102
G.R. No. 145587, October 26, 2007, 537 SCRA 409.
103
G.R. No. 123901, September 22, 1999, 315 SCRA 23.

104
G.R. No. 157975, June 26, 2007, 525 SCRA 586.

105
www.merriam-webster.com/dictionary visited on November 22, 2008 at 3:09.

106
See also Flourish, supra note 95; and Athena, supra note 96.

107
It is noted that both petitioner and the OSG drew comparisons between OFWs in general
and local workers in general. However, the Court finds that the more relevant comparison is
between OFWs whose employment is necessarily subject to a fixed term and local workers
whose employment is also subject to a fixed term.

108
Promulgated on August 6, 1888 by Queen Maria Cristina of Spain and extended to the
Philippines by Royal Decree of August 8, 1888. It took effect on December 1, 1888.

109
No. 1133, March 29, 1904, 3 SCRA 519.

110
No. L-8431, October 30, 1958, 104 SCRA 748.

111
See also Wallem Philippines Shipping, Inc. v. Hon. Minister of Labor, No. L-50734-37,
February 20, 1981, 102 scra 835, where Madrigal Shipping Company, Inc. v. Ogilvie is cited.

112
No. L-10422, January 11, 1916, 33 SCRA 162.

113
No. L-15878, January 11, 1922, 42 SCRA 660.

114
7 Phil. 268 (1907).

115
See also Knust v. Morse, 41 Phil 184 (1920).

116
Brent School, Inc. v. Zamora, No. L-48494, February 5, 1990, 181 SCRA 702.

117
No. L-22608, June 30, 1969, 28 SCRA 699.

118
The Labor Code itself does not contain a specific provision for local workers with fixed-
term employment contracts. As the Court observed in Brent School, Inc., the concept of
fixed-term employment has slowly faded away from our labor laws, such that reference to
our labor laws is of limited use in determining the monetary benefits to be awarded to fixed-
term workers who are illegally dismissed.

119
No. L-65545, July 9, 1986., 142 SCRA 542.

120
G.R. No. 100399, August 4, 1992, 212 SCRA 132.

121
G.R. No. 111212, January 22, 1996, 252 SCRA 116.

122
G.R. No. 113363, August 24, 1999, 313 SCRA 1.

123
G.R. No. 113911, January 23, 1998, 284 SCRA 656.
124
See Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003, 408 SCRA 1.

125
Id.

126
Roe v. Wade, 410 U.S. 113 (1971); see also Carey v. Population Service International,
431 U.S. 678 (1977).

127
Sabio v. Gordon, G.R. Nos. 174340, 174318, 174177, October 16, 2006, 504 SCRA 704.

128
Comment, rollo, p. 555.

129
Memorandum of the Solicitor General, id. at 682-683

130
Id. at p. 693.

131
Section 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security of tenure, humane conditions of work, and a living
wage. They shall also participate in policy and decision-making processes affecting their
rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right
of labor to its just share in the fruits of production and the right of enterprises to reasonable
returns to investments, and to expansion and growth.

132
Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156,
February 3, 1997, 267 SCRA 408.

133
Basco v. Philippine Amusement and Gaming Corporation, G.R. No. 91649, May 14, 1991,
197 SCRA 52.

134
G.R. No. 158693, November 17, 2004, 442 SCRA 573.

135
Agabon v. National Labor Relations Commission, supra note 134, at 686.

136
Associated Communications and Wireless Services, Ltd. v. Dumlao, G. R. No. 136762,
November 21, 2002, 392 SCRA 269.

137
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.

138
G.R. No. 180719, August 22, 2008. See also PCL Shipping Philippines, Inc. v. National
Labor Relations Commission. G.R. No. 153031, December 14, 2006, 511 SCRA 44.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 187883 June 16, 2009

ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO, Petitioners,


vs.
SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of
Representatives, Respondent.

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

G.R. No. 187910 June 16, 2009

LOUIS "BAROK" C. BIRAOGO, Petitioner,


vs.
SPEAKER PROSPERO C. NOGRALES, Speaker of the House of Representatives, Congress of
the Philippines, Respondent.

RESOLUTION

PUNO, C.J.:

This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its
bounden duty to wield its judicial power 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 a lack or excess of jurisdiction on the part of any branch or instrumentality
of the government."1 Be that as it may, no amount of exigency can make this Court exercise a power
where it is not proper.

The two petitions, filed by their respective petitioners in their capacities as concerned citizens and
taxpayers, prayed for the nullification of House Resolution No. 1109 entitled "A Resolution Calling
upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or
Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress." In essence,
both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by
this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the
Constitution. Unfortunately, this Court cannot indulge petitioners’ supplications. While some may
interpret petitioners’ moves as vigilance in preserving the rule of law, a careful perusal of their
petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will
assume jurisdiction over cases involving constitutional disputes.

It is well settled that it is the duty of the judiciary to say what the law is.2 The determination of the
nature, scope and extent of the powers of government is the exclusive province of the judiciary, such
that any mediation on the part of the latter for the allocation of constitutional boundaries would
amount, not to its supremacy, but to its mere fulfillment of its "solemn and sacred obligation" under
the Constitution.3 This Court’s power of review may be awesome, but it is limited to actual cases and
controversies dealing with parties having adversely legal claims, to be exercised after full opportunity
of argument by the parties, and limited further to the constitutional question raised or the very lis
mota presented.4 The "case-or-controversy" requirement bans this court from deciding "abstract,
hypothetical or contingent questions,"5 lest the court give opinions in the nature of advice concerning
legislative or executive action.6 In the illuminating words of the learned Justice Laurel in Angara v.
Electoral Commission7 :

Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord
the presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government.

An aspect of the "case-or-controversy" requirement is the requisite of "ripeness." In the United


States, courts are centrally concerned with whether a case involves uncertain contingent future
events that may not occur as anticipated, or indeed may not occur at all.8 Another approach is the
evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and
second, the hardship to the parties entailed by withholding court consideration.9 In our jurisdiction,
the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it.10 An alternative road to review similarly taken would be to determine whether an
action has already been accomplished or performed by a branch of government before the courts
may step in.11

In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly
lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from
the act complained of. In the second place, House Resolution No. 1109 only resolved that the House
of Representatives shall convene at a future time for the purpose of proposing amendments or
revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have
yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of
power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109
involves a quintessential example of an uncertain contingent future event that may not occur as
anticipated, or indeed may not occur at all. The House has not yet performed a positive act that
would warrant an intervention from this Court. 1avv phi 1

Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing
the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971
Constitutional Convention. The court resolved the issue thus:

More specifically, as long as any proposed amendment is still unacted on by it, there is no room for
the interposition of judicial oversight. Only after it has made concrete what it intends to submit for
ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction.
That is the command of the Constitution as interpreted by this Court. Unless and until such a
doctrine loses force by being overruled or a new precedent being announced, it is controlling. It is
implicit in the rule of law.12

Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue.
Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has
personally suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be
redressed by the remedy being sought.13 In the cases at bar, petitioners have not shown the
elemental injury in fact that would endow them with the standing to sue. Locus standi requires a
personal stake in the outcome of a controversy for significant reasons. It assures adverseness and
sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional
questions.14 The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s
three-page petition that is devoid of any legal or jurisprudential basis.

Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the
cases at bar as taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained
of directly involves the illegal disbursement of public funds derived from taxation.15 It is undisputed
that there has been no allocation or disbursement of public funds in this case as of yet. To be sure,
standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an
issue of transcendental importance or when paramount public interest is involved.16 While the Court
recognizes the potential far-reaching implications of the issue at hand, the possible consequence of
House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under
the "transcendental importance" doctrine.

The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from
Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual
controversies involving rights which are legally demandable and enforceable." As stated in
Kilosbayan, Incorporated v. Guingona, Jr.,17 viz.:

x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to
open their doors to all parties or entities claiming a grievance. The rationale for this constitutional
requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary
presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the
determination of a coordinate, democratically elected organ of government." It thus goes to the very
essence of representative democracies.

xxxx

A lesser but not insignificant reason for screening the standing of persons who desire to litigate
constitutional issues is economic in character. Given the sparseness of our resources, the capacity
of courts to render efficient judicial service to our people is severely limited. For courts to
indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is
an evil that clearly confronts our judiciary today.

Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi,
evolving from the stringent requirements of "personal injury" to the broader "transcendental
importance" doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant
and the ignoble to file petitions that prove nothing but their cerebral deficit.

In the final scheme, judicial review is effective largely because it is not available simply at the behest
of a partisan faction, but is exercised only to remedy a particular, concrete injury.18 When warranted
by the presence of indispensible minimums for judicial review, this Court shall not shun the duty to
resolve the constitutional challenge that may confront it.

IN VIEW WHEREOF, the petitions are dismissed.

SO ORDERED.

REYNATO S. PUNO
Chief Justice
WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO


Associate Justice Associate Justice

(on official leave)


RENATO C. CORONA
CONCHITA CARPIO MORALES*
Associate Justice
Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

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


Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMIN
Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

Footnotes

*
On official leave.

1
Article VIII, Section 1, 1987 Constitution.

2
Marbury v. Madison , 1 Cranch 137, 2L. Ed. 60 [1803].

3
Angara v. Electoral Commission, 63 Phil. 139 (1936).

4
Ibid.
5
Alabama State Fed. of Labor v. McAdory, 325 U.S. 450 461 (1945).

6
Muskrat v. United States, 219 U.S. 346, 362 (1911).

7
Supra, see note 3.

8
Tribe, American Constitutional Law, 3d ed. 2000, p. 335.

9
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

10
Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).

11
Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (2003).

12
G.R. No. L-34161, February 29, 1972, 43 SCRA 677, 682.

13
Tolentino v. COMELEC, 465 Phil. 385, 402 (2004).

14
Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540.

15
Pascual v. Secretary of Public Works, 110 Phil. 331 (1960).

16
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA
81.

17
See Dissent of then Associate Justice Reynato S. Puno, G.R. No. 113375, May 5, 1994,
232 SCRA 110.

18
Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 175352

DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners,


vs.
RICHARD J. GORDON, Respondent.

DECISION

CARPIO, J.:

The Case

This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his seat in
the Senate.

The Facts

Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners) filed with this
Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate.
Petitioners are officers of the Board of Directors of the Quezon City Red Cross Chapter while
respondent is Chairman of the Philippine National Red Cross (PNRC) Board of Governors.

During respondent’s incumbency as a member of the Senate of the Philippines,1 he was elected
Chairman of the PNRC during the 23 February 2006 meeting of the PNRC Board of Governors.
Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors, respondent
has ceased to be a member of the Senate as provided in Section 13, Article VI of the Constitution,
which reads:

SEC. 13. No Senator or Member of the House of Representatives may 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, during his term without forfeiting
his seat. Neither shall he be appointed to any office which may have been created or the
emoluments thereof increased during the term for which he was elected.

Petitioners cite Camporedondo v. NLRC,2 which held that the PNRC is a government-owned or
controlled corporation. Petitioners claim that in accepting and holding the position of Chairman of the
PNRC Board of Governors, respondent has automatically forfeited his seat in the Senate, pursuant
to Flores v. Drilon,3 which held that incumbent national legislators lose their elective posts upon their
appointment to another government office.

In his Comment, respondent asserts that petitioners have no standing to file this petition which
appears to be an action for quo warranto, since the petition alleges that respondent committed an
act which, by provision of law, constitutes a ground for forfeiture of his public office. Petitioners do
not claim to be entitled to the Senate office of respondent. Under Section 5, Rule 66 of the Rules of
Civil Procedure, only a person claiming to be entitled to a public office usurped or unlawfully held by
another may bring an action for quo warranto in his own name. If the petition is one for quo warranto,
it is already barred by prescription since under Section 11, Rule 66 of the Rules of Civil Procedure,
the action should be commenced within one year after the cause of the public officer’s forfeiture of
office. In this case, respondent has been working as a Red Cross volunteer for the past 40 years.
Respondent was already Chairman of the PNRC Board of Governors when he was elected Senator
in May 2004, having been elected Chairman in 2003 and re-elected in 2005.

Respondent contends that even if the present petition is treated as a taxpayer’s suit, petitioners
cannot be allowed to raise a constitutional question in the absence of any claim that they suffered
some actual damage or threatened injury as a result of the allegedly illegal act of respondent.
Furthermore, taxpayers are allowed to sue only when there is a claim of illegal disbursement of
public funds, or that public money is being diverted to any improper purpose, or where petitioners
seek to restrain respondent from enforcing an invalid law that results in wastage of public funds.

Respondent also maintains that if the petition is treated as one for declaratory relief, this Court would
have no jurisdiction since original jurisdiction for declaratory relief lies with the Regional Trial Court.

Respondent further insists that the PNRC is not a government-owned or controlled corporation and
that the prohibition under Section 13, Article VI of the Constitution does not apply in the present case
since volunteer service to the PNRC is neither an office nor an employment.

In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an action
for declaratory relief. Petitioners maintain that the present petition is a taxpayer’s suit questioning the
unlawful disbursement of funds, considering that respondent has been drawing his salaries and
other compensation as a Senator even if he is no longer entitled to his office. Petitioners point out
that this Court has jurisdiction over this petition since it involves a legal or constitutional issue which
is of transcendental importance.

The Issues

Petitioners raise the following issues:

1. Whether the Philippine National Red Cross (PNRC) is a government- owned or controlled
corporation;

2. Whether Section 13, Article VI of the Philippine Constitution applies to the case of
respondent who is Chairman of the PNRC and at the same time a Member of the Senate;

3. Whether respondent should be automatically removed as a Senator pursuant to Section


13, Article VI of the Philippine Constitution; and

4. Whether petitioners may legally institute this petition against respondent.4

The substantial issue boils down to whether the office of the PNRC Chairman is a government office
or an office in a government-owned or controlled corporation for purposes of the prohibition in
Section 13, Article VI of the Constitution.

The Court’s Ruling

We find the petition without merit.


Petitioners Have No Standing to File this Petition

A careful reading of the petition reveals that it is an action for quo warranto. Section 1, Rule 66 of the
Rules of Court provides:

Section 1. Action by Government against individuals. – An action for the usurpation of a public office,
position or franchise may be commenced by a verified petition brought in the name of the Republic
of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office,
position or franchise;

(b) A public officer who does or suffers an act which by provision of law, constitutes a ground
for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act. (Emphasis supplied)

Petitioners allege in their petition that:

4. Respondent became the Chairman of the PNRC when he was elected as such during the
First Regular Luncheon-Meeting of the Board of Governors of the PNRC held on February
23, 2006, the minutes of which is hereto attached and made integral part hereof as Annex
"A."

5. Respondent was elected as Chairman of the PNRC Board of Governors, during his
incumbency as a Member of the House of Senate of the Congress of the Philippines, having
been elected as such during the national elections last May 2004.

6. Since his election as Chairman of the PNRC Board of Governors, which position he duly
accepted, respondent has been exercising the powers and discharging the functions and
duties of said office, despite the fact that he is still a senator.

7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of the
Board of Governors of the PNRC, respondent has ceased to be a Member of the House of
Senate as provided in Section 13, Article VI of the Philippine Constitution, x x x

xxxx

10. It is respectfully submitted that in accepting the position of Chairman of the Board of
Governors of the PNRC on February 23, 2006, respondent has automatically forfeited his
seat in the House of Senate and, therefore, has long ceased to be a Senator, pursuant to the
ruling of this Honorable Court in the case of FLORES, ET AL. VS. DRILON AND GORDON,
G.R. No. 104732, x x x

11. Despite the fact that he is no longer a senator, respondent continues to act as such and
still performs the powers, functions and duties of a senator, contrary to the constitution, law
and jurisprudence.

12. Unless restrained, therefore, respondent will continue to falsely act and represent himself
as a senator or member of the House of Senate, collecting the salaries, emoluments and
other compensations, benefits and privileges appertaining and due only to the legitimate
senators, to the damage, great and irreparable injury of the Government and the Filipino
people.5 (Emphasis supplied)

Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC Board of
Governors, respondent has automatically forfeited his seat in the Senate. In short, petitioners filed
an action for usurpation of public office against respondent, a public officer who allegedly committed
an act which constitutes a ground for the forfeiture of his public office. Clearly, such an action is for
quo warranto, specifically under Section 1(b), Rule 66 of the Rules of Court.

Quo warranto is generally commenced by the Government as the proper party plaintiff. However,
under Section 5, Rule 66 of the Rules of Court, an individual may commence such an action if he
claims to be entitled to the public office allegedly usurped by another, in which case he can bring the
action in his own name. The person instituting quo warranto proceedings in his own behalf must
claim and be able to show that he is entitled to the office in dispute, otherwise the action may be
dismissed at any stage.6 In the present case, petitioners do not claim to be entitled to the Senate
office of respondent. Clearly, petitioners have no standing to file the present petition.

Even if the Court disregards the infirmities of the petition and treats it as a taxpayer’s suit, the
petition would still fail on the merits.

PNRC is a Private Organization Performing Public Functions

On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95,7 otherwise known as
the PNRC Charter. The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization,
whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most
vulnerable without consideration of nationality, race, religion, gender, social status, or political
affiliation.8 The PNRC provides six major services: Blood Services, Disaster Management, Safety
Services, Community Health and Nursing, Social Services and Voluntary Service.9

The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a
voluntary organization for the purpose contemplated in the Geneva Convention of 27 July
1929.10 The Whereas clauses of the PNRC Charter read:

WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention by
which the nations of the world were invited to join together in diminishing, so far lies within their
power, the evils inherent in war;

WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent revision
of said convention, namely the "Convention of Geneva of July 29 [sic], 1929 for the Amelioration of
the Condition of the Wounded and Sick of Armies in the Field" (referred to in this Charter as the
Geneva Red Cross Convention);

WHEREAS, the Geneva Red Cross Convention envisages the establishment in each country of a
voluntary organization to assist in caring for the wounded and sick of the armed forces and to furnish
supplies for that purpose;

WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946 and
proclaimed its adherence to the Geneva Red Cross Convention on February 14, 1947, and by that
action indicated its desire to participate with the nations of the world in mitigating the suffering
caused by war and to establish in the Philippines a voluntary organization for that purpose as
contemplated by the Geneva Red Cross Convention;
WHEREAS, there existed in the Philippines since 1917 a Charter of the American National Red
Cross which must be terminated in view of the independence of the Philippines; and

WHEREAS, the volunteer organizations established in the other countries which have ratified or
adhered to the Geneva Red Cross Convention assist in promoting the health and welfare of their
people in peace and in war, and through their mutual assistance and cooperation directly and
through their international organizations promote better understanding and sympathy among the
peoples of the world. (Emphasis supplied)

The PNRC is a member National Society of the International Red Cross and Red Crescent
Movement (Movement), which is composed of the International Committee of the Red Cross (ICRC),
the International Federation of Red Cross and Red Crescent Societies (International Federation),
and the National Red Cross and Red Crescent Societies (National Societies). The Movement is
united and guided by its seven Fundamental Principles:

1. HUMANITY – The International Red Cross and Red Crescent Movement, born of a desire
to bring assistance without discrimination to the wounded on the battlefield, endeavors, in its
international and national capacity, to prevent and alleviate human suffering wherever it may
be found. Its purpose is to protect life and health and to ensure respect for the human being.
It promotes mutual understanding, friendship, cooperation and lasting peace amongst all
peoples.

2. IMPARTIALITY – It makes no discrimination as to nationality, race, religious beliefs, class


or political opinions. It endeavors to relieve the suffering of individuals, being guided solely
by their needs, and to give priority to the most urgent cases of distress.

3. NEUTRALITY – In order to continue to enjoy the confidence of all, the Movement may not
take sides in hostilities or engage at any time in controversies of a political, racial, religious or
ideological nature.

4. INDEPENDENCE – The Movement is independent. The National Societies, while


auxiliaries in the humanitarian services of their governments and subject to the laws of their
respective countries, must always maintain their autonomy so that they may be able at all
times to act in accordance with the principles of the Movement.

5. VOLUNTARY SERVICE – It is a voluntary relief movement not prompted in any manner


by desire for gain.

6. UNITY – There can be only one Red Cross or one Red Crescent Society in any one
country. It must be open to all. It must carry on its humanitarian work throughout its territory.

7. UNIVERSALITY – The International Red Cross and Red Crescent Movement, in which all
Societies have equal status and share equal responsibilities and duties in helping each
other, is worldwide. (Emphasis supplied)

The Fundamental Principles provide a universal standard of reference for all members of the
Movement. The PNRC, as a member National Society of the Movement, has the duty to uphold the
Fundamental Principles and ideals of the Movement. In order to be recognized as a National
Society, the PNRC has to be autonomous and must operate in conformity with the Fundamental
Principles of the Movement.11
The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral
workers during international or internal armed conflicts, the PNRC volunteers must not be seen as
belonging to any side of the armed conflict. In the Philippines where there is a communist insurgency
and a Muslim separatist rebellion, the PNRC cannot be seen as government-owned or controlled,
and neither can the PNRC volunteers be identified as government personnel or as instruments of
government policy. Otherwise, the insurgents or separatists will treat PNRC volunteers as enemies
when the volunteers tend to the wounded in the battlefield or the displaced civilians in conflict areas.

Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and
independent in order to conduct its activities in accordance with the Fundamental Principles. The
PNRC must not appear to be an instrument or agency that implements government policy;
otherwise, it cannot merit the trust of all and cannot effectively carry out its mission as a National
Red Cross Society.12 It is imperative that the PNRC must be autonomous, neutral, and independent
in relation to the State.

To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be owned or
controlled by the government. Indeed, the Philippine government does not own the PNRC. The
PNRC does not have government assets and does not receive any appropriation from the Philippine
Congress.13 The PNRC is financed primarily by contributions from private individuals and private
entities obtained through solicitation campaigns organized by its Board of Governors, as provided
under Section 11 of the PNRC Charter:

SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be
financed primarily by contributions obtained through solicitation campaigns throughout the year
which shall be organized by the Board of Governors and conducted by the Chapters in their
respective jurisdictions. These fund raising campaigns shall be conducted independently of other
fund drives by other organizations. (Emphasis supplied)

The government does not control the PNRC. Under the PNRC Charter, as amended, only six of the
thirty members of the PNRC Board of Governors are appointed by the President of the Philippines.
Thus, twenty-four members, or four-fifths (4/5), of the PNRC Board of Governors are not appointed
by the President. Section 6 of the PNRC Charter, as amended, provides:

SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed
of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall
be elected by chapter delegates in biennial conventions and the remaining six shall be selected by
the twenty-four members of the Board already chosen. x x x.

Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the chapter
delegates of the PNRC, and six are elected by the twenty-four members already chosen — a select
group where the private sector members have three-fourths majority. Clearly, an overwhelming
majority of four-fifths of the PNRC Board are elected or chosen by the private sector members of the
PNRC.

The PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects the
PNRC Chairman and all other officers of the PNRC. The incumbent Chairman of PNRC, respondent
Senator Gordon, was elected, as all PNRC Chairmen are elected, by a private sector-controlled
PNRC Board four-fifths of whom are private sector members of the PNRC. The PNRC Chairman is
not appointed by the President or by any subordinate government official.

Under Section 16, Article VII of the Constitution,14 the President appoints all officials and employees
in the Executive branch whose appointments are vested in the President by the Constitution or by
law. The President also appoints those whose appointments are not otherwise provided by law.
Under this Section 16, the law may also authorize the "heads of departments, agencies,
commissions, or boards" to appoint officers lower in rank than such heads of departments, agencies,
commissions or boards.15 In Rufino v. Endriga,16 the Court explained appointments under Section 16
in this wise:

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers. The first group refers to the heads of the Executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in the President by the Constitution. The second
group refers to those whom the President may be authorized by law to appoint. The third group
refers to all other officers of the Government whose appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments
Congress may by law vest in the heads of departments, agencies, commissions, or boards. x x x

xxx

In a department in the Executive branch, the head is the Secretary. The law may not authorize the
Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive
department. In an agency, the power is vested in the head of the agency for it would be
preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the
commission. In a board, the head is also the chairperson of the board. In the last three situations,
the law may not also authorize officers other than the heads of the agency, commission, or board to
appoint lower-ranked officers.

xxx

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically
in the "heads" of the specified offices, and in no other person. The word "heads" refers to the
chairpersons of the commissions or boards and not to their members, for several reasons.

The President does not appoint the Chairman of the PNRC. Neither does the head of any
department, agency, commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman
is not an official or employee of the Executive branch since his appointment does not fall under
Section 16, Article VII of the Constitution. Certainly, the PNRC Chairman is not an official or
employee of the Judiciary or Legislature. This leads us to the obvious conclusion that the PNRC
Chairman is not an official or employee of the Philippine Government. Not being a government
official or employee, the PNRC Chairman, as such, does not hold a government office or
employment.

Under Section 17, Article VII of the Constitution,17 the President exercises control
over all government offices in the Executive branch. If an office is legally not under the control of
the President, then such office is not part of the Executive branch. In Rufino v. Endriga,18 the
Court explained the President’s power of control over all government offices as follows:

Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal
and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also
not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall under the Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order creating them under any
specific department" falls "under the Office of the President."

Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President "shall have control of all executive . . . offices," Section 17, Article VII of
the 1987 Constitution does not exempt any executive office — one performing executive functions
outside of the independent constitutional bodies — from the President’s power of control. There is no
dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.

The President’s power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise or
reverse the acts or decisions of a subordinate officer involving the exercise of discretion.

In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch. Any office in the Executive branch that is not under the control of
the President is a lost command whose existence is without any legal or constitutional basis.
(Emphasis supplied)

An overwhelming four-fifths majority of the PNRC Board are private sector individuals elected to the
PNRC Board by the private sector members of the PNRC. The PNRC Board exercises all corporate
powers of the PNRC. The PNRC is controlled by private sector individuals. Decisions or actions of
the PNRC Board are not reviewable by the President. The President cannot reverse or modify the
decisions or actions of the PNRC Board. Neither can the President reverse or modify the decisions
or actions of the PNRC Chairman. It is the PNRC Board that can review, reverse or modify the
decisions or actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman
is a private office, not a government office.1avv phi 1

Although the State is often represented in the governing bodies of a National Society, this can be
justified by the need for proper coordination with the public authorities, and the government
representatives may take part in decision-making within a National Society. However, the freely-
elected representatives of a National Society’s active members must remain in a large majority in a
National Society’s governing bodies.19

The PNRC is not government-owned but privately owned. The vast majority of the thousands of
PNRC members are private individuals, including students. Under the PNRC Charter, those who
contribute to the annual fund campaign of the PNRC are entitled to membership in the PNRC for one
year. Thus, any one between 6 and 65 years of age can be a PNRC member for one year upon
contributing P35, P100, P300, P500 or P1,000 for the year.20 Even foreigners, whether residents or
not, can be members of the PNRC. Section 5 of the PNRC Charter, as amended by Presidential
Decree No. 1264,21 reads:

SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire population in
the Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross
Annual Fund Campaign shall entitle the contributor to membership for one year and said contribution
shall be deductible in full for taxation purposes.

Thus, the PNRC is a privately owned, privately funded, and privately run charitable organization. The
PNRC is not a government-owned or controlled corporation.

Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,22 which ruled that the
PNRC is a government-owned or controlled corporation. In ruling that the PNRC is a government-
owned or controlled corporation, the simple test used was whether the corporation was created by
its own special charter for the exercise of a public function or by incorporation under the general
corporation law. Since the PNRC was created under a special charter, the Court then ruled that it is
a government corporation. However, the Camporedondoruling failed to consider the definition of a
government-owned or controlled corporation as provided under Section 2(13) of the Introductory
Provisions of the Administrative Code of 1987:

SEC. 2. General Terms Defined. – x x x

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-
stock corporation, vested with functions relating to public needs whether governmental or proprietary
in nature, and owned by the Government directly or through its instrumentalities either wholly, or
where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) percent
of its capital stock: Provided, That government-owned or controlled corporations may be further
categorized by the Department of the Budget, the Civil Service Commission, and the Commission on
Audit for purposes of the exercise and discharge of their respective powers, functions and
responsibilities with respect to such corporations.(Boldfacing and underscoring supplied)

A government-owned or controlled corporation must be owned by the government, and in the case
of a stock corporation, at least a majority of its capital stock must be owned by the government. In
the case of a non-stock corporation, by analogy at least a majority of the members must be
government officials holding such membership by appointment or designation by the government.
Under this criterion, and as discussed earlier, the government does not own or control PNRC.

The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private
Corporations by Special Law

The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on
22 March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations, unless such corporations are owned or controlled by the
Government or any subdivision or instrumentality thereof.

The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from
creating private corporations except by general law. Section 1 of the PNRC Charter, as amended,
creates the PNRC as a "body corporate and politic," thus:

SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic
to be the voluntary organization officially designated to assist the Republic of the Philippines in
discharging the obligations set forth in the Geneva Conventions and to perform such other duties as
are inherent upon a National Red Cross Society. The national headquarters of this Corporation shall
be located in Metropolitan Manila. (Emphasis supplied)
In Feliciano v. Commission on Audit,23 the Court explained the constitutional provision prohibiting
Congress from creating private corporations in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution
recognizes two classes of corporations. The first refers to private corporations created under a
general law. The second refers to government-owned or controlled corporations created by special
charters. Section 16, Article XII of the Constitution provides:

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of
economic viability.

The Constitution emphatically prohibits the creation of private corporations except by general law
applicable to all citizens. The purpose of this constitutional provision is to ban private corporations
created by special charters, which historically gave certain individuals, families or groups special
privileges denied to other citizens.

In short, Congress cannot enact a law creating a private corporation with a special charter. Such
legislation would be unconstitutional. Private corporations may exist only under a general law. If the
corporation is private, it must necessarily exist under a general law. Stated differently, only
corporations created under a general law can qualify as private corporations. Under existing laws,
the general law is the Corporation Code, except that the Cooperative Code governs the
incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled corporations


through special charters. Since private corporations cannot have special charters, it follows that
Congress can create corporations with special charters only if such corporations are government-
owned or controlled.24 (Emphasis supplied)

In Feliciano, the Court held that the Local Water Districts are government-owned or controlled
corporations since they exist by virtue of Presidential Decree No. 198, which constitutes their special
charter. The seed capital assets of the Local Water Districts, such as waterworks and sewerage
facilities, were public property which were managed, operated by or under the control of the city,
municipality or province before the assets were transferred to the Local Water Districts. The Local
Water Districts also receive subsidies and loans from the Local Water Utilities Administration
(LWUA). In fact, under the 2009 General Appropriations Act,25 the LWUA has a budget amounting
to P400,000,000 for its subsidy requirements.26 There is no private capital invested in the Local
Water Districts. The capital assets and operating funds of the Local Water Districts all come from
the government, either through transfer of assets, loans, subsidies or the income from such assets
or funds.

The government also controls the Local Water Districts because the municipal or city mayor, or the
provincial governor, appoints all the board directors of the Local Water Districts. Furthermore, the
board directors and other personnel of the Local Water Districts are government employees subject
to civil service laws and anti-graft laws. Clearly, the Local Water Districts are considered
government-owned or controlled corporations not only because of their creation by special charter
but also because the government in fact owns and controls the Local Water Districts.

Just like the Local Water Districts, the PNRC was created through a special charter. However, unlike
the Local Water Districts, the elements of government ownership and control are clearly lacking in
the PNRC. Thus, although the PNRC is created by a special charter, it cannot be considered a
government-owned or controlled corporation in the absence of the essential elements of ownership
and control by the government. In creating the PNRC as a corporate entity, Congress was in fact
creating a private corporation. However, the constitutional prohibition against the creation of private
corporations by special charters provides no exception even for non-profit or charitable corporations.
Consequently, the PNRC Charter, insofar as it creates the PNRC as a private corporation and grants
it corporate powers,27 is void for being unconstitutional. Thus, Sections
1,28 2,29 3,304(a),31 5,32 6,33 7,34 8,35 9,36 10,37 11,38 12,39 and 1340 of the PNRC Charter, as amended,
are void.

The other provisions41 of the PNRC Charter remain valid as they can be considered as a recognition
by the State that the unincorporated PNRC is the local National Society of the International Red
Cross and Red Crescent Movement, and thus entitled to the benefits, exemptions and privileges set
forth in the PNRC Charter. The other provisions of the PNRC Charter implement the Philippine
Government’s treaty obligations under Article 4(5) of the Statutes of the International Red Cross and
Red Crescent Movement, which provides that to be recognized as a National Society, the Society
must be "duly recognized by the legal government of its country on the basis of the Geneva
Conventions and of the national legislation as a voluntary aid society, auxiliary to the public
authorities in the humanitarian field."

In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a
government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI
of the 1987 Constitution. However, since the PNRC Charter is void insofar as it creates the PNRC as
a private corporation, the PNRC should incorporate under the Corporation Code and register with
the Securities and Exchange Commission if it wants to be a private corporation.

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for purposes of
the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2,
3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or
Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because
they create the PNRC as a private corporation or grant it corporate powers.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO


Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES


Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA ARTURO D. BRION
Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMIN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

1
Respondent was elected as a Senator during the May 2004 elections.

2
370 Phil. 901 (1999).

3
G.R. No. 104732, 22 June 1993, 223 SCRA 568.

4
Rollo, p. 181.

5
Id. at 3-5.

6
The Secretary of Justice Cuevas v. Atty. Bacal, 400 Phil. 1115 (2000); Garcia v. Perez, 188
Phil. 43 (1980).

7
An Act to Incorporate the Philippine National Red Cross, as amended by Presidential
Decree No. 1264.

8
PNRC Website,HYPERLINK
"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx" HYPERLINK
"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx"
http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspxHYPERLINK
"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx" (visited 25 March 2009).

9
PNRC Website,HYPERLINK
"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx" HYPERLINK
"http://www.redcross.org.ph/Site/PNRC/About.aspx"
http://www.redcross.org.ph/Site/PNRC/About.aspx (visited 25 March 2009).
10
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the
Field.

11
Article 4 of the Statutes of the International Red Cross and Red Crescent Movement reads:

Article 4

Conditions for Recognition of National Societies

In order to be recognized in terms of Article 5, paragraph 2 b) as a National Society,


the Society shall meet the following conditions:

1. Be constituted on the territory of an independent State where the Geneva


Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field is in force.

2. Be the only National Red Cross or Red Crescent Society of the said State and be
directed by a central body which shall alone be competent to represent it in its
dealings with other components of the Movement.

3. Be duly recognized by the legal government of its country on the basis of the
Geneva Conventions and of the national legislation as a voluntary aid society,
auxiliary to the public authorities in the humanitarian field.

4. Have an autonomous status which allows it to operation in conformity with the


Fundamental Principles of the Movement.

5. Use a name and distinctive emblem in conformity with the Geneva Conventions
and their Additional Protocols.

6. Be so organized as to be able to fulfill the tasks defined in its own statutes,


including the preparation in peace time for its statutory tasks in case of armed
conflicts.

7. Extend its activities to the entire territory of the State.

8. Recruit its voluntary members and its staff without consideration of race, sex,
class, religion or political opinions.

9. Adhere to the present Statutes, share in the fellowship which unites the
components of the Movement and cooperate with them.

10. Respect the Fundamental Principles of the Movement and be guided in its work
by the principles of international humanitarian law. (Emphasis supplied)

12
The Fundamental Principles of the Red Cross and Red Crescent, ICRC Publication, p. 17.

13
Although under Section 4(c) of the PNRC Charter, as amended, the PNRC is allotted one
lottery draw yearly by the Philippine Charity Sweepstakes for the support of its disaster relief
operations, in addition to its existing lottery draws for the Blood Program, such allotments are
donations given to most charitable organizations.
14
Section 16, Article VII of the Constitution provides:

The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until after disapproval by the Commission on Appointments or until the next
adjournment of the Congress.

15
Endriga v. Rufino, G.R. Nos. 139554 & 139565, 21 July 2006, 496 SCRA 13.

16
Id. at 50-57.

17
Section 17, Article VII of the Constitution provides:

The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

18
Supra note 15 at 63-65.

19
See note 12 at 20.

20
PNRC Website, http://202.57.124.158/Site/PNRC/membershipInfo.aspx#5 (visited 15 June
2009).

21
Issued on 15 December 1977.

22
Supra note 2.

23
464 Phil. 439 (2004).

24
Id. at 454-455.

25
Republic Act No. 9524.

26
DBM Website,HYPERLINK "http://www.dbm.gov.ph/GAA09/bsgc/C1.pdf" HYPERLINK
"http://www.dbm.gov.ph/GAA09/bsgc/C1.pdf" http://www.dbm.gov.ph/GAA09/bsgc/C1.pdf
(visited 25 June 2009).

27
Section 36 of the Corporation Code enumerates the general powers of a corporation:
SEC. 36. Corporate powers and capacity. – Every corporation incorporated under
this Code has the power and capacity:

1. To sue and be sued in its corporate name;

2. Of succession by its corporate name for the period of time stated in the articles of
incorporation and the certificate of incorporation;

3. To adopt and use a corporate seal;

4. To amend its articles of incorporation in accordance with the provisions of this


Code;

5. To adopt by-laws, not contrary to law, morals or public policy, and to amend or
repeal the same in accordance with this Code;

6. In case of stock corporations, to issue or sell stocks to subscribers and to sell


treasury stocks in accordance with the provisions of this Code; and to admit
members to the corporation if it be a non-stock corporation;

7. To purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage
and otherwise deal with such real and personal property, including securities and
bonds of other corporations, as the transaction of the lawful business of the
corporation may reasonably and necessarily require, subject to the limitations
prescribed by law and the Constitution;

8. To adopt any plan of merger or consolidation as provided in this Code;

9. To make reasonable donations, including those for the public welfare or for
hospital, charitable, cultural, scientific, civic, or similar purposes: Provided, That no
corporation, domestic or foreign, shall give donations in aid of any political party or
candidate or for purposes of partisan political activity;

10. To establish pension, retirement and other plans for the benefit of its directors,
trustees, officers and employees; and

11. To exercise such other powers as may be essential or necessary to carry out its
purpose or purposes as stated in its articles of incorporation.

28
SECTION 1. There is hereby created in the Republic of the Philippines a body corporate
and politic to be the voluntary organization officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva Conventions and to perform
such other duties as are inherent upon a national Red Cross Society. The national
headquarters of this Corporation shall be located in Metro Manila.

29
SEC. 2. The name of this corporation shall be "The Philippine National Red Cross" and by
that name shall have perpetual succession with the power to sue and be sued; to own and
hold such real and personal estate as shall be deemed advisable and to accept bequests,
donations and contributions of property of all classes for the purpose of this Corporation
hereinafter set forth; to adopt a seal and to alter and destroy the same at pleasure; and to
have the right to adopt and to use, in carrying out its purposes hereinafter designated, as an
emblem and badge, a red Greek cross on a white ground, the same as has been described
in the Geneva Conventions, and adopted by the several nations ratifying or adhering thereto;
to ordain and establish by-laws and regulations not inconsistent with the laws of the Republic
of the Philippines, and generally to do all such acts and things as may be necessary to carry
into effect the provisions of this Act and promote the purposes of said organization; and the
corporation hereby created is designated as the organization which is authorized to act in
matters of relief under said Convention. In accordance with the Geneva Conventions, the
issuance of the distinctive Red Cross emblem to medical units and establishments,
personnel and materials neutralized in time of war shall be left to the military authorities. The
red Greek cross on a white ground, as has been described by the Geneva Conventions is
not, and shall not be construed as a religious symbol, and shall have equal efficacy and
applicability to persons of all faiths, creeds and beliefs. The operational jurisdiction of the
Philippine National Red Cross shall be over the entire territory of the Philippines.

30
SEC. 3. That the purposes of this Corporation shall be as follows:

a. To provide volunteer aid to the sick and wounded of the armed forces in time of
war, in accordance with the spirit of and under the conditions prescribed by the
Geneva Conventions to which the Republic of the Philippines proclaimed its
adherence;

b. For the purposes mentioned in the preceding sub-section, to perform all duties
devolving upon the Corporation as a result of the adherence of the Republic of the
Philippines to the said Convention;

c. To act in matters of voluntary relief and in accordance with the authorities of the
armed forces as a medium of communication between the people of the Republic of
the Philippines and their Armed Forces, in time of peace and in time of war, and to
act in such matters between similar national societies of other governments and the
Government and people and the Armed Forces of the Republic of the Philippines;

d. To establish and maintain a system of national and international relief in time of


peace and in time of war and apply the same in meeting the emergency needs
caused by typhoons, flood, fires, earthquakes, and other natural disasters and to
devise and carry on measures for minimizing the suffering caused by such disasters;

e. To devise and promote such other services in time of peace and in time of war as
may be found desirable in improving the health, safety and welfare of the Filipino
people;

f. To devise such means as to make every citizen and/or resident of the Philippines a
member of the Red Cross.

31
SEC. 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs, the
Philippine National Red Cross shall:

a. Be authorized to secure loans from any financial institution which shall not exceed
its budget of the previous year.

32
SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire
population in the Philippines regardless of citizenship. Any contribution to the Philippine
National Red Cross Annual Fund Campaign shall entitle the contributor to membership for
one year and said contribution shall be deductible in full for taxation purposes.

33
SEC. 6. The governing powers and authority shall be vested in the Board of Governors
composed of thirty members, six of whom shall be appointed by the President of the
Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the
remaining six shall be selected by the twenty-four members of the Board already chosen. At
least one but not more than three of the Presidential appointees shall be chosen from the
Armed Forces of the Philippines.

a. The term of office of all members of the Board shall be four years, including those
appointed by the President of the Philippines, renewable at the pleasure of the
appointing power or elective bodies.

b. Vacancies in the Board of Governors caused by death or resignation shall be filled


by election by the Board of Governors at its next meeting, except that vacancies
among the Presidential appointees shall be filled by the President.

34
SEC. 7. The President of the Philippines shall be the Honorary President of the Philippine
National Red Cross. The officers shall consist of a Chairman, a Vice-Chairman, a Secretary,
a Treasurer, a Counselor, an Assistant Secretary and an Assistant Treasurer, all of whom
shall be elected by the Board of Governors from among its membership for a term of two
years and may be re-elected. The election of officers shall take place within sixty days after
all the members of the Board of Governors have been chosen and have qualified.

35
SEC. 8. The Biennial meeting of chapter delegates shall be held on such date and such
place as may be specified by the Board of Governors to elect members of the Board of
Governors and advice the Board of Governors on the activities of the Philippine National Red
Cross; Provided, however, that during periods of great emergency, the Board of Governors
in its discretion may determine that the best interest of the corporation shall be served by
postponing such biennial meeting.

36
SEC. 9. The power to ordain, adopt and amend by-laws and regulations shall be vested in
the Board of Governors.

37
SEC. 10. The members of the Board of Governors, as well as the officers of the
corporation, shall serve without compensation. The compensation of the paid staff of the
corporation shall be determined by the Board of Governors upon the recommendation of the
Secretary General.

38
SEC. 11. As a national voluntary organization, the Philippine National Red Cross shall be
financed primarily by contributions obtained through solicitation campaigns throughout the
year which shall be organized by the Board of Governors and conducted by the Chapters in
their respective jurisdictions. These fund raising campaigns shall be conducted
independently of other fund drives by other organizations.

39
SEC. 12. The Board of Governors shall promulgate rules and regulations for the
organization of local units of the Philippine National Red Cross to be known as Chapters.
Said rules and regulations shall fix the relationship of the Chapters to the Corporation, define
their territorial jurisdictions, and determine the number of delegates for each chapter based
on population, fund campaign potentials and service needs.
40
SEC. 13. The Corporation shall, at the end of every calendar year submit to the President
of the Philippines an annual report containing the activities of the Corporation showing its
financial condition, the receipts and disbursements.

41
The valid provisions are Sections 4(b) and (c), 14, 15, 16, and 17:

SEC. 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs,


the Philippine National Red Cross shall:

xxx

b. Be exempt from payment of all duties, taxes, fees, and other charges of all kinds
on all importations and purchases for its exclusive use, on donations for its disaster
relief work and other Red Cross services, and in its benefits and fund raising drives
all provisions of law to the contrary notwithstanding.

c. Be allotted by the Philippine Charity Sweepstakes Office one lottery draw yearly
for the support of its disaster relief operations in addition to its existing lottery draws
for the Blood Program.

SEC. 14. It shall be unlawful for any person to solicit, collect or receive money,
materials, or property of any kind by falsely representing or pretending himself to be
a member, agent or representative of the Philippine National Red Cross.

SEC. 15. The use of the name Red Cross is reserved exclusively to the Philippine
National Red Cross and the use of the emblem of the red Greek cross on a white
ground is reserved exclusively to the Philippine National Red Cross, medical services
of the Armed Forces of the Philippines and such other medical facilities or other
institutions as may be authorized by the Philippine National Red Cross as provided
under Article 44 of the Geneva Conventions. It shall be unlawful for any other person
or entity to use the words Red Cross or Geneva Cross or to use the emblem of the
red Greek cross on a white ground or any designation, sign, or insignia constituting
an imitation thereof for any purpose whatsoever.

SEC. 16. As used in this Decree, the term person shall include any legal person,
group, or legal entity whatsoever nature, and any person violating any section of this
Article shall, upon conviction therefore be liable to a fin[e] of not less than one
thousand pesos or imprisonment for a term not exceeding one year, or both, at the
discretion of the court, for each and every offense. In case the violation is committed
by a corporation or association, the penalty shall devolve upon the president, director
or any other officer responsible for such violation.

SEC. 17. All acts or parts of acts which are inconsistent with the provisions of this
Decree are hereby repealed.

The Lawphil Project - Arellano Law Foundation


DISSENTING OPINION

NACHURA, J.:

I am constrained to register my dissent because the ponencia does not only endorse an
unmistakably flagrant transgression of the Constitution but also unwittingly espouses the destruction
of the Philippine National Red Cross (PNRC) as an institution. With all due respect, I disagree with
the principal arguments advanced in the ponencia to justify Senator Richard J. Gordon’s
unconstitutional holding of the chairmanship of the PNRC Board of Governors while concurrently
sitting as a member of the Senate of the Philippines.

Procedurally, I maintain that the petition is one for prohibition and that petitioners have standing to
file the same. On the merits, I remain earnestly convinced that PNRC is a government owned or
controlled corporation (GOCC), if not a government instrumentality; that its charter does not violate
the constitutional proscription against the creation of private corporations by special law; and that
Senator Gordon’s continuous occupancy of two incompatible positions is a clear violation of the
Constitution.

Allow me to elucidate.

I.

The petition should be treated


as one for prohibition; and
petitioners have locus standi

I submit that the present petition should be treated as one for prohibition rather than for quo
warranto. In the main, the petitioners seek from this Court the declaration that Senator Gordon has
forfeited his seat in the Senate, and the consequent proscription from further acting or representing
himself as a Senator and from receiving the salaries, emoluments, compensations, privileges and
benefits thereof.1 Hence, the remedy sought is preventive and restrictive—an injunction against an
alleged continuing violation of the fundamental law. Furthermore, the petitioners raise a
constitutional issue, without claiming any entitlement to either the Senate seat or the chairmanship of
PNRC.

Considering that the issue involved is of fundamental constitutional significance and of paramount
importance, i.e., whether the Senator continues to commit an infringement of the Constitution by
holding two positions claimed to be incompatible, the Court has full authority, nay the bounden duty,
to treat the vaguely worded petition as one for prohibition and assume jurisdiction.2

Petitioners, as citizens of the Republic and by being taxpayers, have locus standi to institute the
instant case. Garcillano v. the House of Representatives Committees on Public Information, Public
Order and Safety, National Defense and Security, Information and Communications Technology,
and Suffrage and Electoral Reforms3 echoes the current policy of the Court, as laid down in Chavez
v. Gonzales,4 to disallow procedural barriers to serve as impediments to addressing and resolving
serious legal questions that greatly impact on public interest. This is in keeping with the Court’s
responsibility under the Constitution to determine whether or not other branches of government have
kept themselves within the limits of the Constitution and the laws, and that they have not abused the
discretion given them.5

Finally, as aforementioned, petitioners advance a constitutional issue which deserves the attention
of this Court in view of its seriousness, novelty and weight as precedent.6 Considering that Senator
Gordon is charged with continuously violating the Constitution by holding incompatible offices, the
institution of the instant action by the petitioners is proper.

II.

A brief history of the PNRC

A historical account of the PNRC’s creation is imperative in order to comprehend the nature of the
institution and to put things in their proper perspective.

Even before its incorporation in 1947, the Red Cross, as an organization, was already in existence in
the Philippines. Apolinario Mabini played an important role in the approval by the Malolos Republic,
on February 17, 1899, of the Constitution of the National Association of the Red Cross. Appointed
to serve as its president was Hilario del Rosario de Aguinaldo. On August 29, 1900, International
Delegate of Diplomacy Felipe Agoncillo met with International Committee of the Red Cross (ICRC)
President Gustave Moynier to lobby for the recognition of the Filipino Red Cross Society and the
application of the 1864 Geneva Convention to the country during the Filipino-American war.7 The
Geneva Convention of August 22, 1864 dealt mainly on the relief to wounded soldiers without any
distinction as to nationality, on the neutrality and inviolability of medical personnel and medical
establishments and units; and on the adoption of the distinctive sign of the red cross on a white
ground by hospitals, ambulances and evacuation parties and personnel.8

On August 30, 1905, a Philippine branch of the American National Red Cross (ANRC) was
organized. This was later officially recognized as an ANRC chapter on December 4, 1917. In 1934,
President Manuel L. Quezon initiated the establishment of an independent Philippine Red Cross, but
this did not materialize because the Commonwealth Government at that time could not ratify the
Geneva Convention. During the Japanese occupation, a Japanese-controlled Philippine Red Cross
was created to take care of internment camps in the country. After the liberation of Manila in 1945,
local Red Cross officials and the ANRC undertook to reconstitute the organization.9The Republic of
the Philippines became an independent nation on July 4, 1946, and proclaimed its adherence to the
Geneva Convention on February 14, 1947. On March 22 of that year, the PNRC was officially
created when President Manuel A. Roxas signed Republic Act (R.A.) No. 95.10

PNRC is a GOCC

Section 16, Article XII, of the Philippine Constitution, provides the inflexible imperative for the
formation or organization of private corporations, as follows:

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of
economic viability.

Delineating the nature of a GOCC, compared to a private corporation, Justice Carpio explains this
inviolable rule in Feliciano v. Commission on Audit11 in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution
recognizes two classes of corporations. The first refers to private corporations created under a
general law. The second refers to government-owned or controlled corporations created by special
charters. Section 16, Article XII of the Constitution provides:
Section 16. The Congress shall not, except by general law, provide for the formation, organization,
or regulation of private corporations. Government-owned or controlled corporations may be created
or established by special charters in the interest of the common good and subject to the test of
economic viability.

The Constitution emphatically prohibits the creation of private corporations except by a general law
applicable to citizens. The purpose of this constitutional provision is to ban private corporations
created by special charters, which historically gave certain individuals, families or groups special
privileges denied to other citizens.

In short, Congress cannot enact a law creating a private corporation with a special charter. Such
legislation would be unconstitutional. Private corporations may exist only under a general law. If the
corporation is private, it must necessarily exist under a general law. Stated differently, only
corporations created under a general law can qualify as private corporations. Under existing laws,
that general law is the Corporation Code, except that the Cooperative Code governs the
incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled corporations


through special charters. Since private corporations cannot have special charters, it follows that
Congress can create corporations with special charters only if such corporations are government-
owned or controlled.12

Reason dictates that since no private corporation can have a special charter, it follows that Congress
can create corporations with special charters only if such corporations are government-owned or
controlled.13 To hold otherwise would run directly against our fundamental law or, worse, authorize
implied amendment to it, which this Court cannot allow.

The PNRC was incorporated under R.A. No 95, a special law. Following the logic in Feliciano, it
cannot be anything but a GOCC.

R.A. No. 95 has undergone amendment through the years.14 Did the amendment of the PNRC
Charter have the effect of transforming it into a private corporation?

In Camporedondo v. National Labor Relations Commission,15 we answered this in the negative. The
Court’s ruling in that case, reiterated in Baluyot v. Holganza,16 is direct, definite and clear, viz:

Resolving the issue set out in the opening paragraph of this opinion, we rule that the Philippine
National Red Cross (PNRC) is a government owned and controlled corporation, with an original
charter under Republic Act No. 95, as amended. The test to determine whether a corporation is
government owned or controlled, or private in nature is simple. Is it created by its own charter for the
exercise of a public function, or by incorporation under the general corporation law? Those with
special charters are government corporations subject to its provisions, and its employees are under
the jurisdiction of the Civil Service Commission, and are compulsory members of the Government
Service Insurance System. The PNRC was not "impliedly converted into a private corporation"
simply because its charter was amended to vest in it the authority to secure loans, be exempted
from payment of all duties, taxes, fees and other charges of all kinds on all importations and
purchases for its exclusive use, on donations for its disaster relief work and other services and in its
benefits and fund raising drives and be allotted one lottery draw a year by the Philippine Charity
Sweepstakes Office for the support of its disaster relief operation in addition to its existing lottery
draws for blood programs.17
In an effort to avoid the inescapable command of Camporendondo, the ponencia asserts that the
decision has failed to consider the definition of a GOCC under Section 2 (13) of the Introductory
Provisions of Executive Order No. 292 (Administrative Code of 1987), which provides:

SEC. 2. General Terms Defined. – x x x

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-
stock corporation, vested with functions relating to public needs whether governmental or proprietary
in nature, and owned by the Government directly or through its instrumentalities either wholly, or,
where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent
of its capital stock: Provided, That government-owned or controlled corporations may be further
categorized by the Department of the Budget, the Civil Service Commission, and the Commission on
Audit for purposes of the exercise and discharge of their respective powers, functions and
responsibilities with respect to such corporations.18

The ponencia then argues that, based on the criterion in the cited provision, PNRC is not owned or
controlled by the government and, thus, is not a GOCC.

I respectfully differ. The quoted Administrative Code provision does not pronounce a definition of a
GOCC that strays from Section 16, Article XII of the Constitution. As explained in Philippine National
Construction Corporation v. Pabion, et al.,19 it merely declares that a GOCC may either be a stock or
non-stock corporation, or that it "may be further categorized,"20 suggesting that the definition
provided in the Administrative Code is broad enough to admit of other distinctions as to the kinds of
GOCCs.21

Rather, crucial in this definition is the reference to the corporation being "vested with functions
relating to public needs whether governmental or proprietary." When we relate this to the PNRC
Charter, as amended, we note that Section 1 of the charter starts with the phrase, "(T)here is hereby
created in the Republic of the Philippines a body corporate and politic to be the voluntary
organization officially designated to assist the Republic of the Philippines in discharging the
obligations set forth in the Geneva Conventions x x x".22 It is beyond cavil that the obligations of the
Republic of the Philippines set forth in the Geneva Conventions are public or governmental in
character. If the PNRC is "officially designated to assist the Republic," then the PNRC is, perforce,
engaged in the performance of the government’s public functions.

PNRC is, at the very least,


a government instrumentality

Further, applying the definition of terms used in the Administrative Code of 1987, as Justice Carpio
urges this Court to do, will lead to the inescapable conclusion that PNRC is an instrumentality of the
government. Section 2(10) of the said code defines a government instrumentality as:

(10) Instrumentality refers to any agency of the National Government not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with some if not
all corporate powers, administering special funds, and enjoying operational autonomy, usually
through a charter. This term includes regulatory agencies, chartered institutions and government-
owned or controlled corporations.23

The PNRC is vested with the special function of assisting the Republic of the Philippines in
discharging its obligations under the Geneva Conventions. It is endowed with corporate powers. It
administers special funds—the contributions of its members, the aid given by the government, the
support extended to it by the Philippine Charity Sweepstakes Office (PCSO) in terms of allotment of
lottery draws.24 It enjoys operational autonomy, as emphasized by Justice Carpio himself. And all
these attributes exist by virtue of its charter.

Significantly, in the United States, the ANRC, the precursor of the PNRC and likewise a member of
the International Federation of Red Cross and Red Crescent Societies,25 is considered as a federal
instrumentality. Addressing the issue of whether the ANRC was an entity exempt from paying
unemployment compensation tax, the US Supreme Court, in Department of Employment v. United
States,26 characterized the Red Cross as an instrumentality of the federal government not covered
by the enforcement of the tax statute and entitled to a refund of taxes paid—

On the merits, we hold that the Red Cross is an instrumentality of the United States for purposes of
immunity from state taxation levied on its operations, and that this immunity has not been waived by
congressional enactment. Although there is no simple test for ascertaining whether an institution is
so closely related to governmental activity as to become a tax-immune instrumentality, the Red
Cross is clearly such an instrumentality. See generally, Sturges, The Legal Status of the Red Cross,
56 Mich.L.Rev. 1 (1957). Congress chartered the present Red Cross in 1905, subjecting it to
governmental supervision and to a regular financial audit by the Defense, then War, Department. 33
Stat. 599, as amended, 36 U.S.C. s 1 et seq. Its principal officer is appointed by the President, who
also appoints seven (all government officers) of the remaining 49 Governors. 33 Stat. 601, as
amended, 36 U.S.C. s 5. By statute and Executive Order there devolved upon the Red Cross the
right and the obligation to meet this Nation's commitments under various Geneva Conventions, to
perform a wide variety of functions indispensable to the workings of our Armed Forces around the
globe, and to assist the Federal Government in providing disaster assistance to the States in time of
need. Although its operations are financed primarily from voluntary private contributions, the Red
Cross does receive substantial material assistance from the Federal Government. And time and time
again, both the President and the Congress have recognized and acted in reliance upon the Red
Cross' status virtually as an arm of the Government. In those respects in which the Red Cross differs
from the usual government agency-e.g., in that its employees are not employees of the United
States, and that government officials do not direct its everyday affairs-the Red Cross is like other
institutions-e.g., national banks-whose status as tax-immune instrumentalities of the United States is
beyond dispute.27

The same conclusion was reached in R.A. Barton v. American Red Cross.28 In that case, a
transfusion recipient and her family brought action against American Red Cross and its state medical
director under Alabama Medical Liability Act as well as Alabama tort law for failing to properly test
blood sample and failing to timely notify recipient that donor had tested positive for human
immunodeficiency virus (HIV). The US District Court concluded that the Red Cross was a federal
instrumentality and was so intertwined with and was essential to the operation of the federal
government, both internationally and domestically;29 thus, its personnel were exempt from tort liability
if the conduct complained of were within the scope of official duties and were discretionary in
nature.30 The US Court of Appeals later affirmed the decision, and the US Supreme Court denied
certiorari and rehearing on the case.31

Interestingly, while the United States considers the ANRC as its arm and the US courts uphold its
status as a federal instrumentality, ANRC remains an independent, volunteer-led organization that
works closely with the ICRC on matters of international conflict and social, political, and military
unrest. There is, therefore, no sufficient basis for Justice Carpio to assume that if this Court will
consider PNRC as a GOCC, then "it cannot merit the trust of all and cannot effectively carry out its
mission as a National Red Cross Society."

Let it be stressed that, in much the same way as the ANRC, the PNRC has been chartered and
incorporated by the Philippine Government to aid it in the fulfillment of its obligations under the
Geneva Convention. The President of the Republic appoints six of the 36 PNRC governors. Though
it depends primarily on voluntary contributions for its funding, PNRC receives financial assistance
not only from the National Government and the PCSO but also through the local government units.
PNRC further submits to the President an annual report containing its activities and showing its
financial condition, as well as the receipts and disbursements. PNRC has further been recognized by
the Philippine Government to be an essential component in its international and domestic operation.
There is no doubt therefore that PNRC is a GOCC or, if not, at least a government instrumentality.

The fact that the Philippine or the American National Red Cross is a governmental instrumentality
does not affect its autonomy and operation in conformity with the Fundamental Principles of the
International Red Cross. The PNRC, like the ANRC, remains autonomous, neutral and independent
from the Government, and vice versa, consonant with the principles laid down in the Geneva
Convention.

A similar standing obtains in the case of the Commission on Human Rights (CHR). While it is a
governmental office, it is independent. Separatists and insurgents do not consider the CHR, or the
PNRC in this case, as the enemy, but rather as the entity to turn to in the event of injury to their
constitutional rights, for the CHR, or to their physical being, for the PNRC.

The PNRC Charter does not violate


the constitutional proscription
against the creation of private
corporations by special law

Considering that the PNRC is not a private corporation, but a GOCC or a government
instrumentality, then its charter does not violate the constitutional provision that Congress cannot,
except by a general law, provide for the formation, organization or regulation of private corporations,
unless such corporations are owned or controlled by the Government.32 We have already settled this
issue in Camporedondo and in Baluyot. Let it be emphasized that, in those cases, this Court has
found nothing wrong with the PNRC Charter. We have simply applied the Constitution, and in
Feliciano, this Court has explained the meaning of the constitutional provision.

I respectfully submit that we are not prepared to reverse the ruling of this Court in the said cases. To
rule otherwise will create an unsettling ripple effect in numerous decisions of this Court, including
those dealing with the jurisdiction of the Civil Service Commission (CSC) and the authority of the
Commission on Audit (COA), among others.

Furthermore, to subscribe to the proposition that Section 1 of the PNRC Charter, which deals with
the creation and incorporation of the organization, is invalid for being violative of the aforesaid
constitutional proscription, but the rest of the provisions in the PNRC Charter remains valid, is to
reach an absurd situation in which obligations are imposed on and a framework for its operation is
laid down for a legally non-existing entity. If Section 1 of the PNRC Charter were impulsively
invalidated, what will remain are the following provisions, which will have no specific frame of
reference─

SECTION 2. The name of this corporation shall be "The Philippine National Red Cross" and by that
name shall have perpetual succession with the power to sue and be sued; to own and hold such real
and personal estate as shall be deemed advisable and to accept bequests, donations and
contributions of property of all classes for the purpose of this Corporation hereinafter set forth; to
adopt a seal and to alter and destroy the same at pleasure; and to have the right to adopt and to
use, in carrying out its purposes hereinafter designated, as an emblem and badge, a red Greek
cross on a white ground, the same as has been described in the Geneva Conventions, and adopted
by the several nations ratifying or adhering thereto; to ordain and establish by-laws and regulations
not inconsistent with the laws of the Republic of the Philippines, and generally to do all such acts
and things as may be necessary to carry into effect the provisions of this Act and promote the
purposes of said organization; and the corporation hereby created is designated as the organization
which is authorized to act in matters of relief under said Convention. In accordance with the Geneva
Conventions, the issuance of the distinctive Red Cross emblem to medical units and establishments,
personnel and materials neutralized in time of war shall be left to the military authorities. The red
Greek cross on a white ground, as has been described by the Geneva Conventions is not, and shall
not be construed as a religious symbol, and shall have equal efficacy and applicability to persons of
all faiths, creeds and beliefs. The operational jurisdiction of the Philippine National Red Cross shall
be over the entire territory of the Philippines.

SECTION 3. That the purposes of this Corporation shall be as follows:

a. To provide volunteer aid to the sick and wounded of armed forces in time of war, in
accordance with the spirit of and under the conditions prescribed by the Geneva
Conventions to which the Republic of the Philippines proclaimed its adherence;

b. For the purposes mentioned in the preceding sub-section, to perform all duties devolving
upon the Corporation as a result of the adherence of the Republic of the Philippines to the
said Convention;

c. To act in matters of voluntary relief and in accordance with the authorities of the armed
forces as a medium of communication between people of the Republic of the Philippines and
their Armed Forces, in time of peace and in time of war, and to act in such matters between
similar national societies of other governments and the Governments and people and the
Armed Forces of the Republic of the Philippines;

d. To establish and maintain a system of national and international relief in time of peace and
in time of war and apply the same in meeting and emergency needs caused by typhoons,
flood, fires, earthquakes, and other natural disasters and to devise and carry on measures
for minimizing the suffering caused by such disasters;

e. To devise and promote such other services in time of peace and in time of war as may be
found desirable in improving the health, safety and welfare of the Filipino people;

f. To devise such means as to make every citizen and/or resident of the Philippines a
member of the Red Cross.

SECTION 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs, the


Philippine National Red Cross shall:

a. Be authorized to secure loans from any financial institution which shall not exceed its
budget of the previous year.

b. Be exempt from payment of all duties, taxes, fees, and other charges of all kinds on all
importations and purchases for its exclusive use, on donations for its disaster relief work and
other Red Cross services, and in its benefits and fund raising drives all provisions of law to
the contrary notwithstanding.
c. Be allotted by the Philippine Charity Sweepstakes Office one lottery draw yearly for the
support of its disaster relief operations in addition to its existing lottery draws for the Blood
Program.

SECTION 5. Membership in the Philippine National Red Cross shall be open to entire population in
the Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross
Annual Fund Campaign shall entitle the contributor to membership for one year and said contribution
shall be deductible in full for taxation purposes.

SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed
of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall
be elected by chapter delegates in biennial conventions and the remaining six shall be elected by
the twenty-four members of the Board already chosen. At least one but not more than three of the
Presidential appointees shall be chosen from the Armed Forces of the Philippines.

a. The term of office of all members of the board of Governors shall be four years. Any
member of the Board of Governor who has served two consecutive full terms of four years
each shall be ineligible for membership on the Board for at least two years; any term served
to cover unexpired terms of office of any governor will not be considered in this prohibition in
serving two consecutive full terms, and provided, however, that terms served for more than
two years shall be considered a full term.

b. Vacancies in the Board of Governors caused by death or resignation shall be filled by


election by the Board of Governors at its next meeting, except that vacancies among the
Presidential appointees shall be filled by the President.

SECTION 7. The President of the Philippines shall be the Honorary President of the Philippine
National Red Cross. The officers shall consist of a Chairman, a Vice-Chairman, a Secretary, a
Treasurer, a Counselor, an Assistant Secretary and an Assistant Treasurer, all of whom shall be
elected by the Board of Governors from among its membership for a term of two years and may be
re-elected. The election of officers shall take place within sixty days after all the members of the
Board of Governors have been chosen and have qualified.

SECTION 8. The Biennial meeting of chapter delegates shall be held on such date and such place
as may be specified by the Board of Governors to elect members of the Board of Governors and
advice the Board of Governors on the activities of the Philippine National Red Cross; Provided,
however that during periods of great emergency, the Board of Governors in its discretion may
determine that the best interest of the corporation shall be served by postponing such biennial
meeting.

SECTION 9. The power to ordain, adopt and amend by-laws and regulations shall be vested in the
Board of Governors.

SECTION 10. The members of the Board of Governors, as well as the officers of the corporation,
shall serve without compensation. The compensation of the paid staff of the corporation shall be
determined by the Board of Governors upon the recommendation of the Secretary General.

SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be
financed primarily by contributions obtained through solicitation campaigns throughout the year
which shall be organized by the Board of Governors and conducted by the Chapters in their
respective jurisdictions. These fund raising campaigns shall be conducted independently of other
fund drives and service needs.
SECTION 12. The Board of Governors shall promulgate rules and regulations for the organization of
local units of the Philippine National Red Cross to be known as Chapters. Said rules and regulations
shall fix the relationship of the Chapters to the Corporation, define their territorial jurisdictions, and
determine the number of delegates for each chapter based on population, fund campaign potentials
and service needs.

SECTION 13. The Corporation shall, at the end of every calendar year submit to the President of the
Philippines an annual report containing the activities of the Corporation showing its financial
condition, the receipts and disbursements.

SECTION 14. It shall be unlawful for any person to solicit, collect or receive money, materials, or
property of any kind by falsely representing or pretending himself to be a member, agent or
representative of the Philippine National Red Cross.

SECTION 15. The use of the name Red Cross is reserved exclusively to the Philippine National Red
Cross and the use of the emblem of the red Greek cross on a white ground is reserved exclusively to
the Philippine National Red Cross, medical services of the Armed Forces of the Philippines and such
other medical facilities or other institutions as may be authorized by the Philippine National Red
Cross as provided under Article 44 of the Geneva Conventions. It shall be unlawful for any other
person or entity to use the words Red Cross or Geneva Cross or to use the emblem of the red Greek
cross on a white ground or any designation, sign, or insignia constituting an imitation thereof for any
purpose whatsoever.

SECTION 16. As used in this Decree, the term person shall include any legal person, group, or legal
entity whatsoever nature, and any person violating any section of this Article shall, upon conviction
therefore be liable to a find of not less than one thousand pesos or imprisonment for a term not
exceeding one year, or both, at the discretion of the court, for each and every offense. In case the
violation is committed by a corporation or association, the penalty shall devolve upon the president,
director or any other officer responsible for such violation.

SECTION 17. All acts or parts of acts which are inconsistent with the provisions of this Decree are
hereby repealed.

Sections 2 to 17 of R.A. No. 95, as amended, are not separable from Section 1, the provision
creating and incorporating the PNRC, and cannot, by themselves, stand independently as law. The
PNRC Charter obviously does not contain a separability clause.

The constitutionality of
a law is presumed

Two other important points militate against the declaration of Section 1 of the PNRC Charter as
invalid and unconstitutional, namely: (1) respondent does not question the constitutionality of the
said provision; and (2) every law enjoys the presumption of constitutionality.

Settled is the doctrine that all reasonable doubts should be resolved in favor of the constitutionality
of a statute. 33The presumption is that the legislature intended to enact a valid, sensible and just law
and one which operates no further than may be necessary to effectuate the specific purpose
thereof.34 Justice Carpio, in Kapisanan ng mga Kawani ng Energy Regulatory Board v. Barin,35 even
echoes the principle that "to justify the nullification of a law, there must be a clear and unequivocal
breach of the Constitution."
Here, as in Camporedondo and Baluyot, there is no clear showing that the PNRC Charter runs
counter to the Constitution. And, again in the same tone as in Montesclaros v. Commission on
Elections, "[the parties] are not even assailing the constitutionality of [the PNRC Charter]." A
becoming courtesy to a co-equal branch should thus impel this Court to refrain from
unceremoniously invalidating a legislative act.

Deleterious effects will result


if PNRC is declared a private
corporation, among which are
its consequent destruction as
an institution and the Republic’s
shirking its obligation under
the Geneva Convention

The hypothesis that PNRC is a private corporation has far-reaching implications. As mentioned
earlier, it will be a reversal of the doctrines laid down in Camporedondo and Baluyot, and it will have
an unsettling ripple effect on other numerous decisions of the Court, including those dealing with the
jurisdiction of the CSC and the authority of the COA.

Not only that. If PNRC is considered as a private corporation, then, this will lead to its ultimate
demise as an institution. Its employees will no longer be covered by the Government Service
Insurance System. It can no longer be extended tax exemptions and official immunity and it cannot
anymore be given support, financial or otherwise, by the National Government, the local government
units and the PCSO; because these will violate not only the equal protection clause in the
Constitution, but also penal statutes.

And if PNRC is consequently obliterated, the Republic will be shirking its responsibilities and
obligations under the Geneva Convention.

This Court then has to be very careful in the resolution of this case and in making a declaration that
will have unintended yet deleterious consequences. The Court must not arbitrarily declare a law
unconstitutional just to save a single individual from the unavoidable consequences of his
transgression of the Constitution, even if it be unintentional and done in good faith.

The respondent holds two


incompatible offices
in violation of the Constitution

Section 13, Article VI of the Constitution explicitly provides that "no Senator or Member of the House
of Representatives may hold any other office or employment in the government, or any subdivision,
agency or instrumentality thereof, including [GOCCs] or their subsidiaries, during his term without
forfeiting his seat."36 In Adaza v. Pacana, Jr.,37 the Court, construing a parallel provision in the 1973
Constitution, has ruled that—

The language used in the above-cited section is plain, certain and free from ambiguity. The only
exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or
expediency of the said provision is a matter which is not within the province of the Court to
determine.

A public office is a public trust. It is created for the interest and the benefit of the people. As such, a
holder thereof "is subject to such regulations and conditions as the law may impose" and "he cannot
complain of any restrictions which public policy may dictate on his holding of more than one office." It
is therefore of no avail to petitioner that the system of government in other states allows a local
elective official to act as an elected member of the parliament at the same time. The dictate of the
people in whom legal sovereignty lies is explicit. It provides no exceptions save the two offices
specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within
the purely parliamentary system of government no incompatibility exists in the nature of the two
offices under consideration, as incompatibility is understood in common law, the incompatibility
herein present is one created by no less than the constitution itself. In the case at bar, there is no
question that petitioner has taken his oath of office as an elected Mambabatas Pambansa and has
been discharging his duties as such. In the light of the oft-mentioned constitutional provision, this
fact operated to vacate his former post and he cannot now continue to occupy the same, nor attempt
to discharge its functions.38

There is no doubt that the language in Section 13, Article VI is unambiguous; it requires no in-depth
construction. However, as the constitutional provision is worded at present, the then recognized
exception adverted to in Adaza, i.e., offices of prime minister and cabinet member, no longer holds
true given the reversion to the presidential system and a bicameral Congress in the 1987
Constitution. There remains, however, a single exception to the rule. Civil Liberties Union v.
Executive Secretary,39 reiterated in the fairly recent Public Interest Center, Inc. v. Elma,40 recognizes
that a position held in an ex officio capacity does not violate the constitutional proscription on the
holding of multiple offices. Interpreting the equivalent section in Article VII on the Executive
Department,41 the Court has decreed in Civil Liberties that—

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of
the Constitution must not, however, be construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an ex officio capacity as provided by
law and as required by the primary functions of said officials’ office. The reason is that these posts
do not comprise "any other office" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said officials. x x x

xxxx

x x x x The term ex officio means "from office; by virtue of office." It refers to an "authority
derived from official character merely, not expressly conferred upon the individual character,
but rather annexed to the official position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other appointment or
authority other than that conferred by the office." An ex officio member of a board is one who
is a member by virtue of his title to a certain office, and without further warrant or
appointment. x x x

xxxx

The ex officio position being actually and in legal contemplation part of the principal office, it follows
that the official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation
attached to his principal office. x x x42

In the instant case, therefore, we must decide whether the respondent holds the chairmanship of
PNRC in an ex officio capacity. Presidential Decree (P.D.) No. 1264, amending R.A. No. 95,
provides for the composition of the governing authority of the PNRC and the manner of their
appointment or election, thus:
Section 6. The governing powers and authority shall be vested in a Board of Governors composed of
thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall be
elected by chapter delegates in biennial conventions and the remaining six shall be elected by the
twenty-four members of the Board already chosen. At least one but not more than three of the
Presidential appointees shall be chosen from the Armed Forces of the Philippines.

a. The term of office of all members of the board of Governors shall be four years. Any
member of the Board of Governor who has served two consecutive full terms of four years
each shall be ineligible for membership on the Board for at least two years; any term served
to cover unexpired terms of office of any governor will not be considered in this prohibition in
serving two consecutive full terms, and provided, however, that terms served for more than
two years shall be considered a full term.

b. Vacancies in the Board of Governors caused by death or resignation shall be filled by


election by the Board of Governors at its next meeting, except that vacancies among the
Presidential appointees shall be filled by the President.

Section 7. The President of the Philippines shall be the Honorary President of the Philippine National
Red Cross. The officers shall consist of a Chairman, a Vice-Chairman, a Secretary, a Treasurer, a
Counselor, an Assistant Secretary and an Assistant Treasurer, all of whom shall be elected by the
Board of Governors from among its membership for a term of two years and may be re-elected. The
election of officers shall take place within sixty days after all the members of the Board of Governors
have been chosen and have qualified.

Nowhere does it say in the law that a member of the Senate can sit in an ex officio capacity as
chairman of the PNRC Board of Governors. Chairmanship of the PNRC Board is neither an
extension of the legislative position nor is it in aid of legislative duties.43 Likewise, the position is
neither derived from one being a member of the Senate nor is it annexed to the Senatorial position.
Stated differently, the PNRC chairmanship does not flow from one’s election as Senator of the
Republic. Applying Civil Liberties, we can then conclude that the chairmanship of the PNRC Board is
not held in an ex officio capacity by a member of Congress.

The fact that the PNRC Chairman of the Board is not appointed by the President44 and the fact that
the former does not receive any compensation45 do not at all give the said position an ex officio
character such that the occupant thereof becomes exempt from the constitutional proscription on the
holding of multiple offices. As held in Public Interest Center, the absence of additional compensation
being received by virtue of the second post is not enough, what matters is that the second post is
held by virtue of the functions of the first office and is exercised in an ex officio capacity.46 Hence,
Senator Gordon, in assuming the chairmanship of the PNRC Board of Governors while being a
member of the Senate, is clearly violating Section 13, Article VI of the Constitution. While we can
only hypothesize on the extent of the incompatibility between the two offices—as stated in
petitioners’ memorandum, Senator Gordon’s holding of both offices may result in a divided focus of
his legislative functions, and in a conflict of interest as when a possible amendment of the PNRC
Charter is lobbied in Congress or when the PNRC and its officials become subjects of legislative
inquiries.47 Let it be stressed that, as in Adaza, the incompatibility herein present is one created by
no less than the Constitution itself.48

I hasten to add that Senator Gordon’s chairmanship of the PNRC Board cannot be likened to the
membership of several legislators in the Legislative-Executive Development Advisory Council, in the
Council of State, in the Board of Regents of state universities, and in the Judiciary, Executive and
Legislative Advisory and Consultative Council, because, in these bodies, the membership of the
legislators is held in an ex officio capacity or as an extension of their legislative functions.49
IN VIEW OF THE FOREGOING, I vote to GRANT the petition.

ANTONIO EDUARDO B. NACHURA

Footnotes

1
Rollo, pp. 3-5.

2
See Del Rosario v. Montaña, G.R. No. 134433, May 28, 2004, 430 SCRA 109, 116; Del
Mar v. Philippine Amusement and Gaming Corp., 400 Phil. 307, 326-327; Sen. Defensor-
Santiago v. Guingona, Jr., 359 Phil. 276, 295-296 (1998).

3
G.R. No. 170338, December 23, 2008.

4
G.R. No. 168338, February 15, 2008, 545 SCRA 441.

5
Id.

6
Garcillano v. the House of Representatives Committees on Public Information, Public Order
and Safety, National Defense and Security, Information and Communications Technology,
and Suffrage and Electoral Reforms, supra note 3.

7
<http://www.redcross.org.ph/Site/PNRC/History.aspx> (visited July 9, 2009).

8
<http://www.icrc.org/ihl.nsf/INTRO/120?OpenDocument> (visited July 9, 2009).

9
Supra note 7.

10
Entitled "An Act To Incorporate the Philippine National Red Cross."

11
464 Phil. 439 (2004).

12
Id. at 454-455; citations omitted and emphasis supplied.

13
Id. at 455.

14
The amendatory laws are Republic Act No. 855 (January 11, 1953), Republic Act No. 6373
(August 16, 1971) and Presidential Decree No. 1264 (December 15, 1977).

15
370 Phil. 901, 906 (1999).

16
382 Phil. 131 (2000)

17
Id. at 136-137.

18
Emphasis supplied.
19
377 Phil. 1019 (1999).

20
See for instance Proclamation No. 50, which categorized GOCCs into parent and
subsidiary corporations, cited in Philippine National Construction Corporation v. Pabion, et
al., supra.

21
See also the definition of a GOCC in Section 2(a) of Administrative Order No. 59
(December 5, 1988), which provides:

"x x x

(a) Government-owned and/or controlled corporation, hereinafter referred to as


GOCC or government corporation, is a corporation which is created by special law or
organized under the Corporation Code in which the Government, directly or
indirectly, has ownership of the majority of the capital or has voting control; Provided
that an acquired asset corporation as defined in the next paragraph shall not be
considered as GOCC or government corporation."

22
Underscoring supplied.

23
Emphasis supplied.

24
See Section 4(c) of R.A. No. 95, as amended.

25
<http://www.redcross.org/portal/site/en/menuitem.86f46a12f382290517a8f210b80f78a0/?v
gnextoi d=271a2aebdaadb110VgnVCM10000089f0870aRCRD> (visited July 9, 2009).

26
385 U.S. 355, 358-360; 87 S.Ct. 464, 467 (1966).

27
Id.

28
829 F.Supp. 1290, 1311 (1993)

29
826 F.Supp. 412, 413-414 (1993).

30
Supre note 27.

31
43 F.3d 678 91994); 516 U.S. 822 (1995); 516 U.S. 1002, 116 S.Ct. 550 (1995).

32
Section 16, Article XII, Philippine Constitution.

33
Beltran v. Secretary of Health, G.R. Nos. 133640, 133661 and 139147, November 25,
2005, 476 SCRA 168, 199.

34
Perez v. People, G.R. No. 164763, February 12, 2008, 544 SCRA 532, 565.

35
G.R. No. 150974, June 29, 2007, 526 SCRA 1, 8.

36
The full text of the provision reads:
"Section 13. No Senator or Member of the House of Representatives may 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, during his term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or the emoluments thereof
increased during the term for which he was elected."

37
No. L-68159, March 18, 1985, 135 SCRA 431.

38
Id. at 434-435; emphasis supplied.

39
G.R. No. 83896, February 22, 1991, 194 SCRA 317.

40
G.R. No. 138965, June 30, 2006, 494 SCRA 53, 63-64.

41
Section 13, Article VII of the Constitution provides in full:

"Section 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their
office.

"The spouse and relatives by consanguinity or affinity within the fourth civil degree of
the President shall not during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or head of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries."

42
Civil Liberties Union v. Executive Secretary, supra note 5, at 331-335; emphasis supplied.

43
See Cruz, Philippine Political Law, 1998 ed., p. 129.

44
See Section 7 of P.D. No. 1264.

45
Section 10 of P.D. No. 1264 provides:

"Section 10. The members of the Board of Governors, as well as the officers of the
corporation, shall serve without compensation. The compensation of the paid staff of
the corporation shall be determined by the Board of Governors upon the
recommendation of the Secretary General."

46
Public Interest Center v. Elma, supra note 6, at 63.

47
Rollo, p. 28.

48
Adaza v. Pacana, Jr., supra note 3.
49
See R.A. No. 7640, Executive Order (E.O.) No. 305, Series of 1987; R.A. No. 8292, R.A.
No. 9500, and the JELAC Memorandum of Agreement
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 108399 July 31, 1997

RAFAEL M. ALUNAN III, in his capacity as Secretary of the Department of Interior and Local
Government (DILG), the BOARD OF ELECTION SUPERVISORS composed of Atty. RUBEN M.
RAMIREZ, Atty. RAFAELITO GARAYBLAS, and Atty. ENRIQUE C. ROA, GUILLERMINA
RUSTIA, in her capacity as Director of the Barangay Bureau, City Treasurer Atty. ANTONIO
ACEBEDO, Budget Officer EUFEMIA DOMINGUEZ, all of the City Government of
Manila, petitioners,
vs.
ROBERT MIRASOL, NORMAN NOEL T. SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO,
MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ, LOURDES ASENCIO, FERDINAND ROXAS,
MA. ALBERTINA RICAFORT, and BALAIS M. LOURICH, and the HONORABLE WILFREDO D.
REYES, Presiding Judge of the Regional Trial Court, Branch 36, Metro Manila, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision dated January 19, 1993 of the Regional Trial
Court of Manila (Branch 36), 1 nullifying an order of the Department of Interior and Local Government
(DILG), which in effect cancelled the general elections for the Sangguniang Kabataan (SK) slated on
December 4, 1992 in the City of Manila, on the ground that the elections previously held on May 26, 1990
served the purpose of the first elections for the SK under the Local Government Code of 1991 (R.A. No.
7160).

Section 423 of the Code provides for a SK in every barangay, to be composed of a chairman, seven
(7) members, a secretary, and a treasurer. Section 532(a) provides that the first elections for the SK
shall be held thirty (30) days after the next local elections. The Code took effect on January 1, 1992.

The first local elections under the Code were held on May 11, 1992. Accordingly, on August 27,
1992, the Commission on Elections issued Resolution No. 2499, providing guidelines for the holding
of the general elections for the SK on September 30, 1992 The guidelines placed the SK elections
under the direct control and supervision of the DILG, with the technical assistance of the
COMELEC. 2 After two postponements, the elections were finally scheduled on December 4, 1992.

Accordingly, registration in the six districts of Manila was conducted. A total of 152,363 youngsters,
aged 15 to 21 years old, registered, 15,749 of them filing certificates of candidacies. The City
Council passed the necessary appropriations for the elections.

On September 18, 1992, however, the DILG, through then Secretary Rafael M. Alunan III, issued a
letter-resolution "exemption" the City of Manila from holding elections for the SK on the ground that
the elections previously held on May 26, 1990 were to be considered the first under the newly-
enacted Local Government Code. The DILG acted on a letter of Joshue R. Santiago, acting
president of the KB City Federation of Manila and a member of City Council of Manila, which called
attention to the fact that in the City of Manila elections for the Kabataang Barangay (the precursor of
the Sangguniang Kabataan) had previously been held on May 26, 1990. In its resolution, the DILG
stated:

[A] close examination of . . . RA 7160 would readily reveal the intention of the legislature to
exempt from the forthcoming Sangguniang Kabataan elections those kabataang barangay
chapters which may have conducted their elections within the period of January 1, 1988 and
January 1, 1992 under BP 337. Manifestly the term of office of those elected KB officials
have been correspondingly extended to coincide with the term of office of those who may be
elected under RA 7160.

On November 27, 1992 private respondents, claiming to represent the 24,000 members of the
Katipunan ng Kabataan, filed a petition for certiorari and mandamus in the RTC of Manila to set
aside the resolution of the DILG. They argued that petitioner Secretary of Interior and Local
Government had no power to amend the resolutions of the COMELEC calling for general elections
for SKs and that the DILG resolution in question denied them the equal protection of the laws.

On November 27, 1992, the trial court, through Executive Judge, now COMELEC Chairman,
Bernardo P. Pardo, issued an injunction, ordering petitioners "to desist from implementing the order
of the respondent Secretary dated September 18, 1992, . . . until further orders of the Court." On the
same day, he ordered petitioners "to perform the specified pre-election activities in order to
implement Resolution No. 2499 dated August 27, 1992 of the Commission on Elections providing for
the holding of a general election of the Sangguniang Kabataan on December 4, 1992 simultaneously
in every barangay throughout the country."

The case was subsequently reraffled to Branch 36 of the same court. On January 19, 1993, the new
judge, Hon. Wilfredo D. Reyes, rendered a decision, holding that (1) the DILG had no power to
"exempt" the City of Manila from holding SK elections on December 4, 1992 because under Art. IX,
C, §2(1) of the Constitution the power to enforce and administer "all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum, and recall" is vested solely in the
COMELEC; (2) the COMELEC had already in effect determined that there had been no previous
elections for KB by calling for general elections for SK officers in every barangay without exception;
and (3) the "exemption" of the City of Manila was violative of the equal protection clause of the
Constitution because, according to the DILG's records, in 5,000 barangays KB elections were held
between January 1, 1988 and January 1, 1992 but only in the City of Manila, where there were 897
barangays, was there no elections held on December 4, 1992.

Petitioners sought this review on certiorari. They insist that the City of Manila, having already
conducted elections for the KB on May 26, 1990, was exempted from holding elections on
December 4, 1992. In support of their contention, they cite §532(d) of the Local Government Code of
1991, which provides that:

All seats reserved for the pederasyon ng mga sangguniang kabataan in the different
sangguniang shall be deemed vacant until such time that the sangguniang kabataan
chairmen shall have been elected and the respective pederasyon presidents have been
selected: Provided, That, elections for the kabataang barangay conducted under Batas
Pambansa Blg. 337 at any time between January 1, 1988 and January 1, 1992 shall be
considered as the first elections provided for in this Code. The term of office of the
kabataang barangay officials elected within the said period shall be extended
correspondingly to coincide with the term of office of those elected under this Code.
(emphasis added)
They maintain that the Secretary of the DILG has authority to determine whether the City of Manila
came within the exception clause of §532(d) so as to be exempt from holding the elections on
December 4, 1992.

The preliminary question is whether the holding of the second elections on May 13, 1996 3 rendered
this case moot and academic. There are two questions raised in this case. The first is whether the
Secretary of Interior and Local Government can "exempt" a local government unit from holding elections
for SK officers on December 4, 1992 and the second is whether the COMELEC can provide that "the
Department of Interior and Local Government shall have direct control and supervision over the election
of sangguniang kabataan with the technical assistance by the Commission on Elections."

We hold that this case is not moot and that it is in fact necessary to decide the issues raised by the
parties. For one thing, doubt may be cast on the validity of the acts of those elected in the May 26,
1990 KB elections in Manila because this Court enjoined the enforcement of the decision of the trial
court and these officers continued in office until May 13, 1996. For another, this case comes within
the rule that courts will decide a question otherwise moot and academic if it is "capable of repetition,
yet evading review." 4 For the question whether the COMELEC can validly vest in the DILG the control
and supervision of SK elections is likely to arise in connection with every SK election and yet the question
may not be decided before the date of such elections.

In the Southern Pacific Terminal case, where the rule was first articulated, appellants were ordered
by the Interstate Commerce Commission to cease and desist from granting a shipper what the ICC
perceived to be preferences and advantages with respect to wharfage charges. The cease and
desist order was for a period of about two years, from September 1, 1908 (subsequently extended to
November 15), but the U.S. Supreme Court had not been able to hand down its decision by the time
the cease and desist order expired. The case was decided only on February 20, 1911, more than
two years after the order had expired. Hence, it was contended that the case had thereby become
moot and the appeal should be dismissed. In rejecting this contention, the Court held:

The question involved in the orders of the Interstate Commerce Commission are usually
continuing (as are manifestly those in the case at bar), and these considerations ought not to
be, as they might be, defeated, by short-term orders, capable of repetition, yet evading
review, and at one time the government, and at another time the carriers, have their rights
determined by the Commission without a chance of redress. 5

In Roe v. Wade, 6 petitioner, a pregnant woman, brought suit in 1970 challenging anti-abortion statutes of
Texas and Georgia on the ground that she had a constitutional right to terminate her pregnancy at least
within the first trimester. The case was not decided until 1973 when she was no longer pregnant. But the
U.S. Supreme Court refused to dismiss the case as moot. It was explained: "[W]hen, as here, pregnancy
is a significant fact the litigation, the normal 266-day human gestation period is so short that the
pregnancy will come to term before the usual appellate process is complete. If that termination makes a
case moot, pregnancy litigation seldom will survive. Our laws should not be that rigid. Pregnancy provides
a classic justification for a conclusion of nonmootness. It truly could be 'capable of repetition, yet evading
review.'" 7

We thus reach the merits of the questions raised in this case. The first question is whether then
DILG Secretary Rafael M. Alunan III had authority to determine whether under §532(d) of the Local
Government Code, the City of Manila was required to hold its first elections for SK. As already
stated, petitioners sustain the affirmative side of the proposition. On the other hand, respondents
argue that this is a power which Art. IX, C, §2(1) of the Constitution vests in the COMELEC.
Respondents further argue that, by mandating that elections for the SK be held on December 4,
1992 "in every barangay," the COMELEC in effect determined that there had been no elections for
the KB previously held in the City of Manila.
We find the petition to be meritorious.

First. As already stated, by §4 of Resolution No. 2499, the COMELEC placed the SK elections under
the direct control and supervision of the DILG. Contrary to respondents' contention, this did not
contravene Art. IX, C, §2(1) of the Constitution which provides that the COMELEC shall have the
power to "enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall." Elections for SK officers are not subject to the
supervision of the COMELEC in the same way that, as we have recently held, contests involving
elections of SK officials do not fall within the jurisdiction of the COMELEC. In Mercado v. Board of
Election Supervisors, 8 it was contended that

COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a separate set of
rules for the election of the SK Chairman different from and inconsistent with that set forth in
the Omnibus Election Code, thereby contravening Section 2, Article 1 of the said Code which
explicitly provides that "it shall govern all elections of public officers", and, (b) it constitutes a
total, absolute, and complete abdication by the COMELEC of its constitutionally and
statutorily mandated duty to enforce and administer all election laws as provided for in
Section 2(1), Article IX-C of the Constitution; Section 52, Article VIII of the Omnibus Election
Code; and Section 2, Chapter 1, Subtitle C, Title 1, Book V of the 1987 Administrative
Code. 9

Rejecting this contention, this Court, through Justice Davide, held:

Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2,
Article IX-C of the Constitution on the COMELEC's exclusive appellate jurisdiction over
contest involving elective barangay officials refer to the elective barangay officials under the
pertinent laws in force at the time the Omnibus Election Code was enacted and upon the
ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local
Government Code, and the elective barangay officials referred to were the punong barangay
and the six sangguniang bayan members. They were to be elected by those qualified to
exercise the right of suffrage. They are also the same officers referred to by the provisions of
the Omnibus Election Code of the Philippines on election of barangay officials. Metropolitan
and municipal trial courts had exclusive original jurisdiction over contests relating to their
election. The decisions of these courts were appealable to the Regional Trial Courts.

xxx xxx xxx

In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly
KB) officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2,
Section 2, Article IX-C of the Constitution and that no law in effect prior to the ratification of
the Constitution had made the SK chairman an elective barangay officials. His being an ex-
officio member of the sangguniang barangay does not make him one for the law specifically
provides who are its elective members, viz., the punong barangay and the seven regular
sangguniang barangay members who are elected at large by those who are qualified to
exercise the right of suffrage under Article V of the Constitution and who are duly registered
voters of the barangay. 10

The choice of the DILG for the task in question was appropriate and was in line with the legislative
policy evident in several statutes. Thus, P.D. No. 684 (April 15, 1975), in creating Kabataang
Barangays in every barangay throughout the country, provided in §6 that the "Secretary of Local
Government and Community Development shall promulgate such rules and regulations as may be
deemed necessary to effectively implement the provisions of this Decree." Again, in 1985
Proclamation No. 2421 of the President of the Philippines, in calling for the general elections of the
Kabataang Barangay on July 13-14, 1985, tasked the then Ministry of Local Government, the
Ministry of Education, Culture and Sports, and the Commission on Elections to assist the Kabataang
Barangay in the conduct of the elections. On the other hand, in a Memorandum Circular dated
March 7, 1988, President Corazon C. Aquino directed the Secretary of Local Government to issue
the necessary rules and regulations for effecting the representation of the Kabataang Barangay,
among other sectors, in the legislative bodies of the local government units.

The role of the COMELEC in the 1992 elections for SK officers was by no means inconsequential.
DILG supervision was to be exercised within the framework of detailed and comprehensive rules
embodied in Resolution No. 2499 of the COMELEC. What was left to the DILG to perform was the
enforcement of the rules.

Second. It is contended that, in its resolution in question, the COMELEC did not name the
barangays which, because they had conducted kabataang barangay elections between January 1,
1988 and January 1, 1992, were not included in the SK elections to be held on December 4, 1992.
That these barangays were precisely to be determined by the DILG is, however, fairly inferable from
the authority given to the DILG to supervise the conduct of the elections. Since §532(d) provided for
kabataang barangay officials whose term of office was extended beyond 1992, the authority to
supervise the conduct of elections in that year must necessarily be deemed to include the authority
to determine which kabataang barangay would not be included in the 1992 elections.

The authority granted was nothing more than the ascertainment of a fact, namely, whether between
January 1, 1988 and January 1, 1992 elections had been held in a given kabataang barangay. If
elections had been conducted, then no new elections had to be held on December 4, 1992 since by
virtue of §532(d) the term of office of the kabataang barangay officials so elected was "extended
correspondingly to coincide with the term of office of those elected under [the Local Government
Code of 1991]." In doing this, the Secretary of Interior and Local Government was to act merely as
the agent of the legislative department, to determine and declare the event upon which its expressed
will was to take effect. 11 There was no undue delegation of legislative power but only of the discretion as
to the execution of a law. That this is constitutionally permissible is the teaching of our cases. 12

Third. Respondents claim, however, that the May 26, 1990 KB elections in Manila were void
because (a) they were called at the instance of then Mayor Gemiliano C. Lopez who did not have
authority to do so and (b) it was not held under COMELEC supervision.

The 1990 elections for the Kabataang Barangay were called by then Manila Mayor Gemiliano C.
Lopez, Jr., who in his Executive Order No. 21 dated April 25, 1990 stated:

WHEREAS, the Kabataang Barangay as an organization provided for under Batas


Pambansa Bilang 337, has been practically dormant since the advent of the present national
administration;

WHEREAS, there is an urgent need to involve the youth in the affairs and undertaking of the
government to ensure the participation of all sectors of our population in the task of nation
building;

WHEREAS, the last elections for the Kabataang Barangay officers were held in November
1985 yet, which is over their three years term of office;

WHEREAS, most of the present crop of KB officers are way past the age limit provided for
under the law;
xxx xxx xxx

The elections were actually held on May 26, 1990 in the 897 barangays of Manila. Later, on June 30,
1990, KB City Federation elections were conducted.

It was precisely to foreclose any question regarding the validity of KB elections held in the aftermath
of the EDSA revolution and upon the effectivity of the new Local Government Code that the
exception clause of §532(d) was inserted. The proceedings of the Bicameral Conference Committee
which drafted the Code show the following: 13

CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o section, ha!

HON. LINA: . . .

Page 436, lines 13 to 14 delete within eighteen months prior to December 31, 1990, and in
lieu thereof, insert from 1988 up to the effectivity of the Code. The rationale. . . .

CHAIRMAN DE PEDRO: How should it be read?

HON. LINA: It will read as follows: "Provided however, that the Local Government Units
which have conducted elections for the Kabataang Barangay as provided for, in Batas
Pambansa Bilang 337, up to the effectivity. . . ."

CHAIRMAN DE PEDRO: So, any deletion from the word "within," ha, up to. . . .

HON. LINA: Remove the words, the phrase, "within eighteen months prior to December 31,
1990, and insert from 1988 up to the effectivity of this Code."

CHAIRMAN DE PEDRO: From?

HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang mga election, eh,
na ginawa, eh.There are five thousand barangays, based on the record of the DILG, out of
forty thousand, imaging that, na nag-conduct na ng election nila based on the KB
Constitution and By-Laws, and they're sitting already, now if we do not recognize that,
mag[ka]karoon sila ng question.

CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.

Section §532(d) may thus be deemed to be a curative law. Curative laws, which in essence are
retrospective in effect, are enacted to validate acts done which otherwise would be invalid under
existing laws, by considering them as having complied with the existing laws. Such laws are
recognized in this jurisdiction. 14

Fourth. It is finally contended that the exemption of the barangays of the City of Manila from the
requirement to hold elections for SK officers on December 4, 1992 would deny the youth voters in
those barangays of the equal protection of laws. Respondent claim that only in barangays in the City
of Manila, which then numbered 897, were elections for SK not held in 1992 on the ground that
between January 1, 1988 and January 1, 1992 there had already been SK elections held, when,
according to petitioners' own evidence, during that period, SK elections had actually been conducted
in 5,000 barangays.
Whether this claim is true cannot be ascertained from the records of this case. Merely showing that
there were 5,000 barangays which similarly held KB elections between January 1, 1988 and January
1, 1992 does not prove that despite that fact these same barangays were permitted to hold elections
on December 4, 1992. For one thing, according to the Manila Bulletin issue of November 18, 1992
(p. 9), 568 barangays in the Province of Bulacan did not have SK elections on December 4, 1992
either, because they already had elections between January 1, 1988 and January 1, 1992. For
another, even assuming that only barangays in Manila were not permitted to hold SK elections on
December 4, 1992 while the rest of the 5,000 barangays were allowed even if KB elections had
already been held there before, this fact does not give the youth voters in the 897 Manila barangays
ground for complaint because what the other barangays did was contrary to law. There is no
discrimination here.

In People v. Vera 15 this Court struck down the Probation Law because it permitted unequal application of
its benefits by making its applicability depend on the decision of provincial governments to appropriate or
not to appropriate funds for the salaries of probation officers, with the result that those not disposed to
allow the benefits of probations to be enjoyed by their inhabitants could simply omit to provide for the
salaries of probation officers. The difference between that case and the one at bar lies in the fact that
what youth voters in the other barangays might have been allowed was not a right which was denied to
youth voters in Manila. If those barangays were not entitled to have SK elections on December 4, 1992
but nevertheless were allowed to have such elections, that fact did not mean those in Manila should
similarly have been allowed to conduct elections on December 4, 1992 because the fact was that they
already had their own, just two years before on May 26, 1990. Respondents' equal protection argument
violates the dictum that one wrong does not make another wrong right.

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 36 is REVERSED and the
case filed against petitioner by private respondents is DISMISSED.

SO ORDERED.

Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco,
Hermosisima, Jr. and Panganiban, JJ., concur.

Narvasa, C.J. and Torres, Jr., J., are on leave.

Footnotes

1 Per Judge Wilfredo D. Reyes, Rollo, pp. 72-80.

2 Resolution No. 2499, §§2 and 4.

3 The second elections were held pursuant to R.A. No. 7808, approved on
September 2, 1994 which provided that "the regular elections for the sangguniang
kabataan shall be held on the first Monday of May 1996: Provided, further. That the
succeeding regular elections for the sangguniang kabataan shall be held every three
(3) years thereafter: Provided, finally, that the national, special metropolitan,
provincial, city, and municipal federations of the sangguniang kabataan shall conduct
the election of their respective officers thirty (30) days after the May 1996
sangguniang kabataan elections on dates to be scheduled by the Commission on
Elections."

4 Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 55 L.Ed. 310 (1911): Moore v.
Ogilvie, 394 U.S. 814, 23 L.Ed.2d 1 (1969) (challenge to signature requirement on
nominating petitions, election had been held before the U.S. Supreme Court could
decide case); Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274 (1972) (U.S.
Supreme Court decided merits of a challenge to durational residency requirement for
voting even though Blumstein had in the meantime satisfied that requirement).

5 Id. at 515, 55 L.Ed. at 316.

6 410 U.S. 113, 35 L.Ed.2d 147 (1973).

7 Id. at 125, 35 L.Ed.2d at 161.

8 243 SCRA 422 (1995).

9 Id, at 426.

10 Id, at 434.

11 Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 469 (1935).

12 Cruz v. Youngberg, 56 Phil. 234 (1931): Edu v. Ericta, 146 Phil. 469 (1970).

13 Records of Deliberations of the Bicameral Conference Committee on Local


Government, May 31, 1991, pp. 4-5 (emphasis added).

14 Municipality of San Narciso, Quezon v. Mendez, Sr., 239 SCRA 11 (1994).

15 65 Phil. 56 (1937).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 120193 March 6, 1996

LUIS MALALUAN, petitioner,


vs.
COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents.

HERMOSISIMA, JR., J.:p

Novel is the situation created by the decision of the Commission on Elections which declared the
winner in an election contest and awarded damages, consisting of attorney's fees, actual expenses
for xerox copies, unearned salary and other emoluments for the period, from March, 1994 to April,
1995, en masse denominated as actual damages, notwithstanding the fact that the electoral
controversy had become moot and academic on account of the expiration of the term of office of the
Municipal Mayor of Kidapawan, North Cotabato.

Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary
restraining order and writ of preliminary injunction, seeking the review of the decision en banc 1 of the
Commission of Elections (COMELEC) denying the motion for reconsideration of the decision 2 of its First
Division, 3 which reversed the decision 4 of the Regional Trial Court 5 in the election case 6 involving the
herein parties. While the Regional Trial Court had found petitioner Luis Malaluan to be the winner of the
elections for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the
contrary, found private respondent Joseph Evangelista to be the rightful winner in said elections.

Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates
in the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections
held on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal
Board of Canvassers as the duly elected Mayor for having garnered 10,498 votes as against
petitioner's 9,792 votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on
May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of
the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected
municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without
precedent, the court found private respondent liable not only for Malaluan's protest expenses but
also for moral and exemplary damages and attorney's fees. On February 3, 1994, private
respondent appealed the trial court decision to the COMELEC.

Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending
appeal. The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner
posted a bond in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of
Municipal Mayor of Kidapawan, North Cotabato, and exercised the powers and functions of said
office. Such exercise was not for long, though. In the herein assailed decision adverse to Malaluan's
continued governance of the Municipality of Kidapawan, North Cotabato, the First Division of the
Commission on Elections (COMELEC) ordered Malaluan to vacate the office, said division having
found and so declared private respondent to be the duly elected Municipal Mayor of said
municipality. The COMELEC en banc affirmed said decision.

Malaluan filed this petition before us on May 31, 1995 as a consequence.

It is significant to note that the term of office of the local officials elected in the May, 1992 elections
expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns
petitioner's right to the mayoralty seat in his municipality 7 because expiration of the term of office
contested in the election protest has the effect of rendering the same moot and academic. 8

When the appeal from a decision in an election case has already become moot, the case being an
election protest involving the office of mayor the term of which had expired, the appeal is dismissible
on that ground, unless the rendering of a decision on the merits would be of practical value. 9 This
rule we established in the case of Yorac vs.Magalona 10 which we dismissed because it had been mooted
by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the
object of contention between the parties therein. The recent case of Atienza vs.Commission on
Elections, 11 however, squarely presented the situation that is the exception to that rule.

Comparing the scenarios in those two cases, we explained:

Second, petitioner's citation of Yorac vs. Magalona as authority for his main
proposition is grossly inappropriate and misses the point in issue. The sole question
in that case centered on an election protest involving the mayoralty post in Saravia,
Negros Occidental in the general elections of 1955, which was rendered moot and
academic by the expiration of the term of office in December, 1959. It did not involve
a monetary award for damages and other expenses incurred as a result of the
election protest. In response to the petitioner's contention that the issues presented
before the court were novel and important and that the appeal should not be
dismissed, the Court held — citing the same provision of the Rules of Court upon
which petitioner staunchly places reliance — that a decision on the merits in the case
would have no practical value at all, and forthwith dismissed the case for being moot.
That is not the case here. In contradistinction to Yorac, a decision on the merits in
the case at bench would clearly have the practical value of either sustaining the
monetary award for damages or relieving the private respondent from having to pay
the amount thus awarded. 12

Indeed, this petition appears now to be moot and academic because the herein parties are
contesting an elective post to which their right to the office no longer exists. However, the question
as to damages remains ripe for adjudication. The COMELEC found petitioner liable for attorney's
fees, actual expenses for xerox copies, and unearned salary and other emoluments from March,
1994 to April, 1995, en masse denominated as actual damages, default in payment by petitioner of
which shall result in the collection of said amount from the bond posted by petitioner on the occasion
of the grant of his motion for execution pending appeal in the trial court. Petitioner naturally contests
the propriety and legality of this award upon private respondent on the ground that said damages
have not been alleged and proved during trial.

What looms large as the issue in this case is whether or not the COMELEC gravely abused its
discretion in awarding the aforecited damages in favor of private respondent.

The Omnibus Election Code provides that "actual or compensatory damages may be granted in all
election contests or in quo warranto proceedings in accordance with law." 13 COMELEC Rules of
Procedure provide that "in all election contests the Court may adjudicate damages and attorney's fees as
it may deem just and as established by the evidence if the aggrieved party has included such claims in
his pleadings." 14 This appears to require only that the judicial award of damages be just and that the
same be borne out by the pleadings and evidence The overriding requirement for a valid and proper
award of damages, it must be remembered, is that the same is in accordance with law, specifically, the
provisions of the Civil Code pertinent to damages.

Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages." The Civil Code
further prescribes the proper setting for allowance of actual or compensatory damages in the
following provisions:

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is liable shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences of the act or omission complained
of. It is not necessary that such damages have been foreseen or could have
reasonably been foreseen by the defendant.

Considering that actual or compensatory damages are appropriate only in breaches of obligations in
cases of contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the
defendant may be held liable for all damages the proximate cause of which is the act or omission
complained of, the monetary claim of a party in an election case must necessarily be hinged on
either a contract or a quasi-contract or a tortious act or omission or a crime, in order to effectively
recover actual or compensatory damages. 15 In the absence of any or all of these, "the claimant must
be able to point out a specific provision of law authorizing a money claim for election protest expenses
against the losing party" 16. For instance, the claimant may cite any of the following provisions of the Civil
Code under the chapter on human relations, which provisions create obligations not by contract, crime or
negligence, but directly by law:

Art. 19. Every person must in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

xxx xxx xxx

Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for
damages:

xxx xxx xxx


(5) Freedom of suffrage;

In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence
an entirely separate and distinct civil action for damages, and for other relief. . . . 17

Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00
constituting salary and other emoluments from March, 1994 to April, 1995 that would have accrued
to him had there not been an execution of the trial court's decision pending appeal therefrom in the
COMELEC.

The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of
an election protest, an elective official who has been proclaimed by the COMELEC as winner in an
electoral contest and who assumed office and entered into the performance of the duties of that
office, is entitled to the compensation, emoluments and allowances legally provided for the
position. 18 We ratiocinated in the case of Rodriguez vs. Tan that:

This is as it should be. This is in keeping with the ordinary course of events. This is
simple justice. The emolument must go to the person who rendered the service
unless the contrary is provided. There is no averment in the complaint that he is
linked with any irregularity vitiating his election. This is the policy and the rule that
has been followed consistently in this jurisdiction in connection with positions held by
persons who had been elected thereto but were later ousted as a result of an
election protest. The right of the persons elected to compensation during their
incumbency has always been recognized. We cannot recall of any precedent
wherein the contrary rule has been upheld. 19

In his concurring opinion in the same case, however, Justice Padilla equally stressed that,
while the general rule is that the ousted elective official is not obliged to reimburse the
emoluments of office that he had received before his ouster, he would be liable for damages
in case he would be found responsible for any unlawful or tortious acts in relation to his
proclamation. We quote the pertinent portion of that opinion for emphasis:

Nevertheless, if the defendant, directly or indirectly, had committed unlawful or


tortious acts which led to and resulted in his proclamation as senator-elect, when in
truth and in fact he was not so elected, he would be answerable for damages. In that
event the salary, fees and emoluments received by or paid to him during his illegal
incumbency would be a proper item of recoverable damage. 20

The criterion for a justifiable award of election protest expenses and salaries and
emoluments, thus, remains to be the existence of a pertinent breach of obligations arising
from contracts or quasi-contracts, tortious acts, crimes or a specific legal provision
authorizing the money claim in the context of election cases. Absent any of these, we could
not even begin to contemplate liability for damages in election cases, except insofar as
attorney's fees are concerned, since the Civil Code enumerates the specific instances when
the same may be awarded by the court.

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;


(2) When the defendant's act or omission has compelled the plaintiff to litigate with
third persons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled
workers;

(8) In actions for indemnity under workmen's compensation and employer's liability
laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's
fees and expenses of litigation should be recovered. 21

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of
respondent COMELEC for awarding actual damages to private respondent in the form of
reimbursement for attorney's fees, actual expenses for xerox copies, and salary and other
emoluments that should have accrued to him from March, 1994 to April, 1995 had the RTC not
issued an order for execution pending appeal.

The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory
damages in this wise:

. . . under the present legal setting, it is more difficult than in the past to secure an
award of actual or compensatory damages either against the protestant or the
protestee because of the requirerments of the law.

In the instant case, however, We are disposed to conclude that the election protest
filed by the protestant is clearly unfounded. As borne out by the results of the
appreciation of ballots conducted by this Commission, apparently the protest was
filed in bad faith without sufficient cause or has been filed for the sole purpose of
molesting the protestee-appellant for which he incurred expenses. The erroneous
ruling of the Court which invalidated ballots which were clearly valid added more
injury to the protestee-appellant. This would have been bearable since he was able
to perfect his appeal to this Commission. The final blow, however, came when the
Court ordered the execution of judgment pending appeal which, from all indications,
did not comply with the requirements of Section 2, Rule 39 of the Rules of Court.
There was no good and special reason at all to justify the execution of judgment
pending appeal because the protestee's winning margin was 149 votes while that of
the protestant — after the Court declared him a winner — was only a margin of 154
votes. Clearly, the order of execution of judgment pending appeal was issued with
grave abuse of discretion.

For these reasons, protestee-appellant seeks to recover the following:

1. Actual damages representing attorney's fees for the new counsel who handled the
Appeal and the Petition for Certiorari before the Court of Appeals . . . P372,500.00

2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies
at P1.50 . . . P11,235.00

3. Actual expenses for xerox copying of ballots . . . P3,919.20

4. Actual damages for loss of salary and other emoluments since March 1994 as per
attached Certification issued by the Municipal Account of Kidapawan . . . P96,832.00
(up to October 1994 only)

Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation
can be recovered (as actual damages) in the case of clearly unfounded civil action or
proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil.
724) disallowed recovery of salaries and allowances (as damages) from elected
officials who were later ousted, under the theory that persons elected has (sic) a right
to compensation during their incumbency, the instant case is different. The
protestee-appellant was the one elected. He was ousted not by final judgment bur by
an order of execution pending appeal which was groundless and issued with grave
abuse of discretion. Protestant-appellee occupied the position in an illegal manner as
a usurper and, not having been elected to the office, but merely installed through a
baseless court order, he certainly had no right to the salaries and emoluments of the
office.

Actual damages in the form of reimbursement for attorney's fees (P372,500.00),


actual expenses for xerox copies (P15,154.00), unearned salary and other
emoluments from March 1994 to April 1995 or 14 months at P12,104.00 a month
(P169,456.00), totalled P557,110.00. To (sic) this amount, however, P300,000.00
representing that portion of attorney's fees denominated as success fee' must be
deducted this being premised on a contingent event the happening of which was
uncertain from the beginning. Moral damages and exemplary damages claimed are,
of course, disallowed not falling within the purview of Section 259 of the Omnibus
Election Code.

It goes without saying that if the protestant-appellee fails to pay the actual damages
of P257,110.00, the amount will be assessed, levied and collected from the bond of
P500,000.00 which he put up before the Court as
a condition for the issuance of the order of execution of judgment pending appeal. 22

Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The
COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in
character or sufficiently provocative to compel reconsideration of said decision and accordingly
affirmed in toto the said decision. Hence, this petition raises, among others, the issue now solely
remaining and in need of final adjudication in view of the mootness of the other issues anent
petitioner's right to the contested office the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to petitioner no
breach of contract or quasi-contract; or tortious act nor crime that may make him liable for actual
damages. Neither has private respondent been "able to point out to a specific provision of law
authorizing a money claim for election protest expenses against the losing party." 23

We find respondent COMELEC's reasoning in awarding the damages in question to be fatally


flawed. The COMELEC found the election protest filed by the petitioner to be clearly unfounded
because its own appreciation of the contested ballots yielded results contrary to those of the trial
court. Assuming, ex gratia argumentis, that this is a reasonable observation not without basis, it is
nonetheless fallacious to conclude a malicious intention on the part of petitioner to molest private
respondent on the basis of what respondent COMELEC perceived as an erroneous ruling of the trial
court. In other words, the actuations of the trial court, after the filing of a case before it, are its own,
and any alleged error on its part does not, in the absence of clear proof, make the suit "clearly
unfounded" for which the complainant ought to be penalized. Insofar as the award of protest
expenses and attorney's fees are concerned, therefore we find them to have been awarded by
respondent COMELEC without basis, the election protest not having been a clearly unfounded one
under the aforementioned circumstances.

Respondent COMELEC also found the order granting execution of judgment pending appeal to be
defective because of alleged non-compliance with the requirement that there be a good and special
reason 24 to justify execution pending appeal. We, however, find that the trial court acted judiciously in the
exercise of its prerogatives under the law in issuing the order granting execution pending appeal. First, it
should be noted that the applicability of the provisions of the Rules of Court, relating to execution pending
appeal, has ceased to be debatable after we definitively ruled in Garcia vs.de Jesus 25 that "Section 2,
Rule 39 of the Rules of Court, which allows Regional Trial Courts to order executions pending appeal
upon good reasons stated in a special order, may be made to apply by analogy or suppletorily to election
contests decided by them." 26 It is not disputed that petitioner filed a bond in the amount of P500,000.00
as required under the Rules of Court.

It is also now a settled rule that "as much recognition should be given to the value of the decision of
a judicial body as a basis for the right to assume office as that given by law to the proclamation
made by the Board of Canvassers." 27

. . . Why should the proclamation by the board of canvassers suffice as basis of the
right to assume office, subject to future contingencies attendant to a protest, and not
the decision of a court of justice? Indeed . . . the board of canvassers is composed of
persons who are less technically prepared to make an accurate appreciation of the
ballots, apart from their being more apt to yield extraneous considerations . . . the
board must act summarily, practically raising (sic) against time, while, on the other
hand, the judge has the benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background, apart from his being allowed
ample time for conscientious study and mature deliberation before rendering
judgment . . . . 28

Without evaluating the merits of the trial court's actual appreciation of the ballots contested in
the election protest, we note on the face of its decision that the trial court relied on the
findings of the National Bureau of Investigation (NBI) handwriting experts which findings
private respondent did not even bother to rebut. We thus see no reason to disregard the
presumption of regularity in the performance of official duty on the part of the trial court
judge. Capping this combination of circumstances which impel the grant of immediate
execution is the undeniable urgency involved in the political situation in the Municipality of
Kidapawan, North Cotabato. The appeal before the COMELEC would undoubtedly cause the
political vacuum in said municipality to persist, and so the trial court reasonably perceived
execution pending appeal to be warranted and justified. Anyway, the bond posted by
petitioner could cover any damages suffered by any aggrieved party. It is true that mere
posting of a bond is not enough reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to one another, is the
dominant consideration for the execution pending appeal. 29

Finally, we deem the award of salaries and other emoluments to be improper and lacking legal
sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez
vs. Tan 30 because while in that case the official ousted was the one proclaimed by the COMELEC, in the
instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of an
order granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in
justifying the award of damages, that since petitioner was adjudged the winner in the elections only by the
trial court and assumed the functions of the office on the strength merely of an order granting execution
pending appeal, the petitioner occupied the position in an illegal manner as a usurper.

We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act
officially without any color of right, 31 the petitioner exercised the duties of an elective office under color
of election thereto. 32 It matters not that it was the trial court and not the COMELEC that declared
petitioner as the winner, because both, at different stages of the electoral process, have the power to so
proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this point,
we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by the
COMELEC-convened Board of Canvassers for a winning candidate's right to assume office, for both are
undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in good
faith, has had possession of the office and had discharged the duties pertaining thereto" 33 and is thus
"legally entitled to the emoluments of the office." 34

To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election
cases of actual and compensatory damages in accordance with law. The victorious party in an
election case cannot be indemnified for expenses which he has incurred in an electoral contest in
the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing
party. Evidently, if any damage had been suffered by private respondent due to the execution of
judgment pending appeal, that damage may be said to be equivalent to damnum absque injuria,
which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage
without violation of a legal right, or a wrong done to a man for which the law provides no remedy. 35

WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision
dated May 5, 1995 that private respondent Joseph Evangelista is the winner in the election for
mayor of the Municipality of Kidapawan, North Cotabato, that portion of the decision is deemed moot
and academic because the term of office for mayor has long expired. That portion of the decision
awarding actual damages to private respondent Joseph Evangelista is hereby declared null and void
for having been issued in grave abuse of discretion and in excess of jurisdiction.

SO ORDERED.

Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco and Panganiban, JJ., concur.

Footnotes

1 Promulgated on May 5, 1995 in EAC No. 8-94; Rollo, pp. 36-40.

2 Promulgated on March 24, 1995 in EAC No. 8-94; Rollo, pp. 41-89.
3 Formerly Second Division with members, Commissioners Regalado E. Maambong,
Graduacion A.R. Claravall, and Julio F. Desamito.

4 Dated January 31, 1994; Rollo, pp. 90-135.

5 Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, presided by Judge
Rodolfo M. Serrano.

6 Election Case No. 881.

7 Amatong v. COMELEC, G.R. No. 71003, April 28, 1988, En Banc, Minute Resolution;
Artano v. Arcillas, G.R. No. 76823, April 26, 1988, En Banc, Minute Resolution.

8 Atienza v. Commission on Elections, 239 SCRA 298; Abeja v. Tañada, 236 SCRA 60;
Yorac v. Magalona, 3 SCRA 76.

9 Yorac v. Magalona, supra.

10 3 SCRA 76.

11 239 SCRA 298.

12 Atienza v. Commission on Elections, supra.

13 B.P. Blg. 881, Sec. 259.

14 COMELEC Rules of Procedure, Rule 35, Sec. 19.

15 Atienza v. Commission on Elections, 239 SCRA 298.

16 Ibid.

17 Civil Code of the Philippines, Preliminary Title, Chapter 2.

18 Rodriguez v. Tan, 91 Phil. 724.

19 Ibid.

20 Concurring Opinion of Justice Padilla in Rodriguez v. Tan, supra.

21 Civil Code of the Philippines, Book IV, Title XVIII, Chapter 2.

22 Decision rendered by the First Division of the Commission on Elections (COMELEC),


promulgated on March 24, 1995, pp. 45-48; Rollo, pp. 85-88.

23 Atienza v. COMELEC, 239 SCRA 298.

24 Rules of Court, Rule 39, Section 2.

25 206 SCRA 779.


26 Ibid.

27 Garcia v. De Jesus, 206 SCRA 779.

28 Gahol v. Riodique, 64 SCRA 494.

29 Roxas v. Court of Appeals, 157 SCRA 370.

30 91 Phil. 724.

31 Tayco v. Capistrano, 53 Phil. 866.

32 Ibid.

33 Civil Liberties Union v. The Executive Secretary, 194 SCRA 317.

34 Ibid.

35 Escano v. CA, 100 SCRA 197; Atienza v. COMELEC, 239 SCRA 298.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 140835 August 14, 2000

RAMON A. GONZALES, petitioner,


vs.
HON. ANDRES R. NARVASA, as Chairman, PREPARATORY COMMISSION ON
CONSTITUTIONAL REFORMS; HON. RONALDO B. ZAMORA, as Executive Secretary;
COMMISSION ON AUDIT; ROBERTO AVENTAJADO, as Presidential Consultant on Council of
Economic Advisers/Economic Affairs; ANGELITO C. BANAYO, as Presidential Adviser for/on
Political Affairs; VERONICA IGNACIO-JONES, as Presidential Assistant/ Appointment
Secretary (In charge of appointments), respondents.

DECISION

GONZAGA-REYES, J.:

In this petition for prohibition and mandamus filed on December 9, 1999, petitioner Ramon A.
Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality of the creation of the
Preparatory Commission on Constitutional Reform (PCCR) and of the positions of presidential
consultants, advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the
presidential consultants, advisers and assistants from acting as such, and to enjoin Executive
Secretary Ronaldo B. Zamora from enforcing their advice and recommendations. In addition,
petitioner seeks to enjoin the Commission on Audit from passing in audit expenditures for the PCCR
and the presidential consultants, advisers and assistants. Finally, petitioner prays for an order
compelling respondent Zamora to furnish petitioner with information on certain matters.

On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity as Chairman
of the PCCR, filed his Comment to the Petition. The rest of the respondents, who are being
represented in this case by the Solicitor General, filed their Comment with this Court on March 7,
2000. Petitioner then filed a Consolidated Reply on April 24, 2000, whereupon this case was
considered submitted for decision.

I. Preparatory Commission on Constitutional Reform

The Preparatory Commission on Constitutional Reform (PCCR) was created by President Estrada
on November 26, 1998 by virtue of Executive Order No. 43 (E.O. No. 43) in order "to study and
recommend proposed amendments and/or revisions to the 1987 Constitution, and the manner of
implementing the same."1 Petitioner disputes the constitutionality of the PCCR on two grounds. First,
he contends that it is a public office which only the legislature can create by way of a law.2 Secondly,
petitioner asserts that by creating such a body the President is intervening in a process from which
he is totally excluded by the Constitution – the amendment of the fundamental charter.3

It is alleged by respondents that, with respect to the PCCR, this case has become moot and
academic. We agree.
An action is considered "moot" when it no longer presents a justiciable controversy because the
issues involved have become academic or dead.4 Under E.O. No. 43, the PCCR was instructed to
complete its task on or before June 30, 1999.5 However, on February 19, 1999, the President issued
Executive Order No. 70 (E.O. No. 70), which extended the time frame for the completion of the
commission’s work, viz –

SECTION 6. Section 8 is hereby amended to read as follows:

Time Frame. The Commission shall commence its work on 01 January 1999 and complete the same
on or before 31 December 1999. The Commission shall submit its report and recommendations to
the President within fifteen (15) working days from 31 December 1999.

The PCCR submitted its recommendations to the President on December 20, 1999 and was
dissolved by the President on the same day. It had likewise spent the funds allotted to it.6 Thus, the
PCCR has ceased to exist, having lost its raison d’etre. Subsequent events have overtaken the
petition and the Court has nothing left to resolve.

The staleness of the issue before us is made more manifest by the impossibility of granting the relief
prayed for by petitioner. Basically, petitioner asks this Court to enjoin the PCCR from acting as
such.7 Clearly, prohibition is an inappropriate remedy since the body sought to be enjoined no longer
exists. It is well established that prohibition is a preventive remedy and does not lie to restrain an act
that is already fait accompli.8 At this point, any ruling regarding the PCCR would simply be in the
nature of an advisory opinion, which is definitely beyond the permissible scope of judicial power.

In addition to the mootness of the issue, petitioner’s lack of standing constitutes another obstacle to
the successful invocation of judicial power insofar as the PCCR is concerned.

The question in standing is whether a party has "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions."9 In assailing
the constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a citizen and
taxpayer.10 A citizen acquires standing only if he can establish that he has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly
traceable to the challenged action; and the injury is likely to be redressed by a favorable
action.11 In Kilosbayan, Incorporated v. Morato,12 we denied standing to petitioners who were
assailing a lease agreement between the Philippine Charity Sweepstakes Office and the Philippine
Gaming Management Corporation, stating that,

… in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept. 22, 1987, standing
was denied to a petitioner who sought to declare a form of lottery known as Instant Sweepstakes
invalid because, as the Court held,

Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3) minor children. But
nowhere in his petition does petitioner claim that his rights and privileges as a lawyer or citizen have
been directly and personally injured by the operation of the Instant Sweepstakes. The interest of the
person assailing the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law is invalid, but also that he has sustained or in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute complained of.
We apprehend no difference between the petitioner in Valmonte and the present petitioners.
Petitioners do not in fact show what particularized interest they have for bringing this suit. It does not
detract from the high regard for petitioners as civic leaders to say that their interest falls short of that
required to maintain an action under Rule 3, d 2.

Coming now to the instant case, petitioner has not shown that he has sustained or is in danger of
sustaining any personal injury attributable to the creation of the PCCR. If at all, it is only Congress,
not petitioner, which can claim any "injury" in this case since, according to petitioner, the President
has encroached upon the legislature’s powers to create a public office and to propose amendments
to the Charter by forming the PCCR. Petitioner has sustained no direct, or even any indirect, injury.
Neither does he claim that his rights or privileges have been or are in danger of being violated, nor
that he shall be subjected to any penalties or burdens as a result of the PCCR’s activities. Clearly,
petitioner has failed to establish his locus standi so as to enable him to seek judicial redress as a
citizen.

A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that
public funds have been disbursed in alleged contravention of the law or the Constitution.13 , Thus
payer’s action is properly brought only when there is an exercise by Congress of its taxing or
spending power.14 This was our ruling in a recent case wherein petitioners Telecommunications and
Broadcast Attorneys of the Philippines (TELEBAP) and GMA Network, Inc. questioned the validity of
section 92 of B.P. No. 881 (otherwise knows as the "Omnibus Election Code") requiring radio and
television stations to give free air time to the Commission on Elections during the campaign
period.15 The Court held that petitioner TELEBAP did not have any interest as a taxpayer since the
assailed law did not involve the taxing or spending power of Congress.16

Many other rulings have premised the grant or denial of standing to taxpayers upon whether or not
the case involved a disbursement of public funds by the legislature. In Sanidad v. Commission on
Elections,17 the petitioners therein were allowed to bring a taxpayers’ suit to question several
presidential decrees promulgated by then President Marcos in his legislative capacity calling for a
national referendum, with the Court explaining that –

...[i]t is now an ancient rule that the valid source of a statute – Presidential Decrees are of such
nature – may be contested by one who will sustain a direct injury as a result of its enforcement. At
the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon
the theory that the expenditure of public funds by an officer of the State for the purpose of executing
an unconstitutional act constitutes a misapplication of such funds. The breadth of Presidential
Decree No. 991 carries an appropriation of Five Million Pesos for the effective implementation of its
purposes. Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these
amounts of public money sufficiently clothes them with that personality to litigate the validity of the
Decrees appropriating said funds. …

In still another case, the Court held that petitioners – the Philippine Constitution Association, Inc., a
non-profit civic organization - had standing as taxpayers to question the constitutionality of Republic
Act No. 3836 insofar as it provides for retirement gratuity and commutation of vacation and sick
leaves to Senators and Representatives and to the elective officials of both houses of
Congress.18 And in Pascual v. Secretary of Public Works,19 the Court allowed petitioner to maintain a
taxpayer’s suit assailing the constitutional soundness of Republic Act No. 920 appropriating P85,000
for the construction, repair and improvement of feeder roads within private property. All these cases
involved the disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v. Laron,20 the Court declared that
the trial court was wrong in allowing respondent Ravanzo to bring an action for injunction in his
capacity as a taxpayer in order to question the legality of the contract of lease covering the public
market entered into between the City of Dagupan and petitioner. The Court declared that Ravanzo
did not possess the requisite standing to bring such taxpayer’s suit since "[o]n its face, and there is
no evidence to the contrary, the lease contract entered into between petitioner and the City shows
that no public funds have been or will be used in the construction of the market building."

Coming now to the instant case, it is readily apparent that there is no exercise by Congress of its
taxing or spending power. The PCCR was created by the President by virtue of E.O. No. 43, as
amended by E.O. No. 70. Under section 7 of E.O. No. 43, the amount of P3 million is "appropriated"
for its operational expenses "to be sourced from the funds of the Office of the President." The
relevant provision states -

Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is hereby appropriated for
the operational expenses of the Commission to be sourced from funds of the Office of the President,
subject to the usual accounting and auditing rules and regulations. Additional amounts shall be
released to the Commission upon submission of requirements for expenditures.

The appropriations for the PCCR were authorized by the President, not by Congress. In fact, there
was no an appropriation at all. "In a strict sense, appropriation has been defined ‘as nothing more
than the legislative authorization prescribed by the Constitution that money may be paid out of the
Treasury’, while appropriation made by law refers to ‘the act of the legislature setting apart or
assigning to a particular use a certain sum to be used in the payment of debt or dues from the State
to its creditors.’ "21 The funds used for the PCCR were taken from funds intended for the Office of the
President, in the exercise of the Chief Executive’s power to transfer funds pursuant to section 25 (5)
of article VI of the Constitution.

In the final analysis, it must be stressed that the Court retains the power to decide whether or not it
will entertain a taxpayer’s suit.22 In the case at bar, there being no exercise by Congress of its taxing
or spending power, petitioner cannot be allowed to question the creation of the PCCR in his capacity
as a taxpayer, but rather, he must establish that he has a "personal and substantial interest in the
case and that he has sustained or will sustain direct injury as a result of its enforcement."23 In other
words, petitioner must show that he is a real party in interest - that he will stand to be benefited or
injured by the judgment or that he will be entitled to the avails of the suit.24 Nowhere in his pleadings
does petitioner presume to make such a representation.

II. Presidential Consultants, Advisers, Assistants

The second issue raised by petitioner concerns the presidential consultants. Petitioner alleges that in
1995 and 1996, the President created seventy (70) positions in the Office of the President and
appointed to said positions twenty (20) presidential consultants, twenty-two (22) presidential
advisers, and twenty-eight (28) presidential assistants.25 Petitioner asserts that, as in the case of the
PCCR, the President does not have the power to create these positions.26

Consistent with the abovementioned discussion on standing, petitioner does not have the personality
to raise this issue before the Court. First of all, he has not proven that he has sustained or is in
danger of sustaining any injury as a result of the appointment of such presidential advisers.
Secondly, petitioner has not alleged the necessary facts so as to enable the Court to determine if he
possesses a taxpayer’s interest in this particular issue. Unlike the PCCR which was created by virtue
of an executive order, petitioner does not allege by what official act, whether it be by means of an
executive order, administrative order, memorandum order, or otherwise, the President attempted to
"create" the positions of presidential advisers, consultants and assistants. Thus, it is unclear what act
of the President petitioner is assailing. In support of his allegation, petitioner merely annexed a copy
of the Philippine Government Directory (Annex "C") listing the names and positions of such
presidential consultants, advisers and assistants to his petition. However, appointment is obviously
not synonymous with creation. It would be improvident for this Court to entertain this issue given the
insufficient nature of the allegations in the Petition.

III. Right to Information

Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary Ronaldo B.
Zamora to answer his letter (Annex "D") dated October 4, 1999 requesting for the names of
executive officials holding multiple positions in government, copies of their appointments, and a list
of the recipients of luxury vehicles seized by the Bureau of Customs and turned over to
Malacanang.27

The right to information is enshrined in Section 7 of the Bill of Rights which provides that –

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

Under both the 197328 and 1987 Constitution, this is a self-executory provision which can be invoked
by any citizen before the courts. This was our ruling in Legaspi v. Civil Service
Commission,29 wherein the Court classified the right to information as a public right and "when
a [m]andamus proceeding involves the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general
‘public’ which possesses the right." However, Congress may provide for reasonable conditions upon
the access to information. Such limitations were embodied in Republic Act No. 6713, otherwise
knows as the "Code of Conduct and Ethical Standards for Public Officials and Employees," which
took effect on March 25, 1989. This law provides that, in the performance of their duties, all public
officials and employees are obliged to respond to letters sent by the public within fifteen (15) working
days from receipt thereof and to ensure the accessibility of all public documents for inspection by the
public within reasonable working hours, subject to the reasonable claims of confidentiality.30

Elaborating on the significance of the right to information, the Court said in Baldoza v.
Dimaano31 that "[t]he incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic perception by the
public of the nation’s problems, nor a meaningful democratic decisionmaking if they are denied
access to information of general interest. Information is needed to enable the members of society to
cope with the exigencies of the times." The information to which the public is entitled to are those
concerning "matters of public concern", a term which "embrace[s] a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine in a case by case basis whether the matter at issue is of interest or importance,
as it relates to or affects the public."32
1âwphi1

Thus, we agree with petitioner that respondent Zamora, in his official capacity as Executive
Secretary, has a constitutional and statutory duty to answer petitioner’s letter dealing with matters
which are unquestionably of public concern – that is, appointments made to public offices and the
utilization of public property. With regard to petitioner’s request for copies of the appointment papers
of certain officials, respondent Zamora is obliged to allow the inspection and copying of the same
subject to the reasonable limitations required for the orderly conduct of official business.33

WHEREFORE, the petition is dismissed, with the exception that respondent Zamora is ordered to
furnish petitioner with the information requested.

SO ORDERED.

Davide, Jr., C.J., Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo,
Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., abroad, on official business.
Puno, J., vote to dismiss on the ground that the case is moot.

Footnotes

1
E.O. No. 43, sec. 1.

2
Petition, 11-18

3
Ibid., 18-22.

4
Santiago v. Court of Appeals, 285 SCRA 16 (1998); Garcia v. Commission on Elections,
258 SCRA 754 (1996).

5
E.O. No. 43, sec. 8.

6
Comment of respondent Narvasa, 7-9.

7
Petition, 29-30.

8
Aguinaldo v. Commission on Elections, 308 SCRA 770 (1998).

9
Kilosbayan, Incorporated v. Morato, 246 SCRA 540 (1995), citing Baker v. Carr, 369 U.S.
186, 7 L.Ed.2d 633 (1962).

10
Petition, 2.

11
Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections, 289 SCRA 337 (1998).

12
246 SCRA 540 (1995).

13
The Anti-Graft League of the Philippines, Inc. v. San Juan, 260 SCRA 250 (1996).

14
Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.
15
Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections, 289 SCRA 337 (1998).

16
See also The Anti-Graft League of the Philippines, Inc. vs. San Juan, 260 SCRA 250
(1996); Kilosbayan, Incorporated v. Morato, 246 SCRA 540 (1995); Dumlao v. Comelec, 95
SCRA 392 (1980).

17
73 SCRA 333 (1976).

18
Philippine Constitution Association, Inc. v. Gimenez, 15 SCRA 479 (1965).

19
110 Phil 331 (1960).

20
176 SCRA 251 (1989).

21
Gonzales v. Raquiza, 180 SCRA 254 (1989).

22
Dumlao v. Commission on Elections, 95 SCRA 392 (1980), citing Tan v. Macapagal, 43
SCRA 677(1972); Sanidad v. Commission on Elections, 73 SCRA 333 (1976).

23
People v. Vera, 65 Phil 50 (1937).

24
Rules of Court, Rule 3, sec. 2; Board of Optometry v. Colet, 260 SCRA 88 (1997).

25
Petition, 6.

26
Ibid., 6-7, 22.

27
Ibid., 1-2, 6

28
Sec. 6, Article III, 1973 Constitution, provided -

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decision, shall be afforded the citizen subject to such limitations as may be
provided by law.

29
150 SCRA 530 (1987).

30
Republic Act No. 6713, sec. 5 (a) and (e); see Rules Implementing the Code of Conduct
and Ethical Standards for Public Officials and Employees, Rule IV.

31
71 SCRA 14 (1976). See Echegaray v. Secretary of Justice, 297 SCRA 754 (1998).

32
Legaspi v. Civil Service Commission, 150 SCRA 530 (1987).

33
Lantaco, Sr. v. Llamas, 108 SCRA 502 (1981).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 191988 August 31, 2010

ATTY. EVILLO C. PORMENTO, Petitioner,


vs.
JOSEPH "ERAP" EJERCITO ESTRADA and COMMISSION ON ELECTIONS, Respondents.

RESOLUTION

CORONA, C.J.:

What is the proper interpretation of the following provision of Section 4, Article VII of the Constitution:
"[t]he President shall not be eligible for any reelection?"

The novelty and complexity of the constitutional issue involved in this case present a temptation that
magistrates, lawyers, legal scholars and law students alike would find hard to resist. However,
prudence dictates that this Court exercise judicial restraint where the issue before it has already
been mooted by subsequent events. More importantly, the constitutional requirement of the
existence of a "case" or an "actual controversy" for the proper exercise of the power of judicial
review constrains us to refuse the allure of making a grand pronouncement that, in the end, will
amount to nothing but a non-binding opinion.

The petition asks whether private respondent Joseph Ejercito Estrada is covered by the ban on the
President from "any reelection." Private respondent was elected President of the Republic of the
Philippines in the general elections held on May 11, 1998. He sought the presidency again in the
general elections held on May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed private
respondent’s candidacy and filed a petition for disqualification. However, his petition was denied by
the Second Division of public respondent Commission on Elections (COMELEC).1 His motion for
reconsideration was subsequently denied by the COMELEC en banc.2

Petitioner filed the instant petition for certiorari3 on May 7, 2010. However, under the Rules of Court,
the filing of such petition would not stay the execution of the judgment, final order or resolution of the
COMELEC that is sought to be reviewed.4 Besides, petitioner did not even pray for the issuance of a
temporary restraining order or writ of preliminary injunction. Hence, private respondent was able to
participate as a candidate for the position of President in the May 10, 2010 elections where he
garnered the second highest number of votes.5 1avv phi1

Private respondent was not elected President the second time he ran. Since the issue on the proper
interpretation of the phrase "any reelection" will be premised on a person’s second (whether
immediate or not) election as President, there is no case or controversy to be resolved in this case.
No live conflict of legal rights exists.6 There is in this case no definite, concrete, real or substantial
controversy that touches on the legal relations of parties having adverse legal interests.7 No specific
relief may conclusively be decreed upon by this Court in this case that will benefit any of the parties
herein.8 As such, one of the essential requisites for the exercise of the power of judicial review, the
existence of an actual case or controversy, is sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing controversies.9 The Court is not
empowered to decide moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the result as to the thing in issue in the case before it.10 In other words, when a
case is moot, it becomes non-justiciable.11

An action is considered "moot" when it no longer presents a justiciable controversy because the
issues involved have become academic or dead or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised
again between the parties. There is nothing for the court to resolve as the determination thereof has
been overtaken by subsequent events.12

Assuming an actual case or controversy existed prior to the proclamation of a President who has
been duly elected in the May 10, 2010 elections, the same is no longer true today. Following the
results of that elections, private respondent was not elected President for the second time. Thus, any
discussion of his "reelection" will simply be hypothetical and speculative. It will serve no useful or
practical purpose.

Accordingly, the petition is denied due course and is hereby DISMISSED.

SO ORDERED.

RENATO C. CORONA
Chief Justice

WE CONCUR:

ANTONIO T. CARPIO CONCHITA CARPIO MORALES


Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA


Associate Justice Associate Justice

(On Leave)
TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION*
Associate Justice
Associate Justice

(On Official Leave)


MARIANO C. DEL CASTILLO
DIOSDADO M. PERALTA**
Associate Justice
Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD


Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

JOSE CATRAL MENDOZA MARIA LOURDES P. A. SERENO


Associate Justice Associate Justice
CERTIFICATION

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

RENATO C. CORONA
Chief Justice

Footnotes

*
On leave.

**
On official leave.

1
Resolution dated January 10, 2010 penned by Commissioner Nicodemo T. Ferrer and
concurred in by Commissioners Lucenito N. Tagle and Elias R. Yusoph. Rollo, pp. 21-46.

2
Resolution dated May 4, 2010 penned by Commissioner Armando C. Velasco and
concurred in by Chairperson Jose A.R. Melo and Commissioners Rene V. Sarmiento,
Nicodemo T. Ferrer, Lucenito N. Tagle, Elias R. Yusoph and Gregorio Y. Larrazabal. Id., pp.
47-51.

3
Under Rule 65 in relation to Rule 64 of the Rules of Court.

4
See Section 8, Rule 64 of the Rules of Court.

5
Benigno Simeon C. Aquino III garnered the highest number of votes and was therefore
proclaimed as President.

6
See discussion on the concept of "case" or "contoversy" in Cruz, Isagani, Philippine
Political Law, 2002 Edition, p. 259.

7
Id.

8
Id.

9
Honig v. Doe, 484 U.S. 305 (1988).

10
Id.

11
While there are exceptions to this rule, none of the exceptions applies in this case. What
may most probably come to mind is the "capable of repetition yet evading review" exception.
However, the said exception applies only where the following two circumstances concur: (1)
the challenged action is in its duration too short to be fully litigated prior to its cessation or
expiration and (2) there is a reasonable expectation that the same complaining party would
be subjected to the same action again (Lewis v. Continental Bank Corporation, 494 U.S. 472
[1990]). The second of these requirements is absent in this case. It is highly speculative and
hypothetical that petitioner would be subjected to the same action again. It is highly doubtful
if he can demonstrate a substantial likelihood that he will "suffer a harm" alleged in his
petition. (See Honig v. Doe, supra.)

12
Santiago v. Court of Appeals, G.R. No. 121908, 26 January 1998, 285 SCRA 16.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 138570 October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS


MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS
OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.

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

G.R. No. 138572 October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,


AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.

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

G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B.
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

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

G.R. No. 138680 October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon,petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and
HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

x-----------------------x
G.R. No. 138698 October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO


SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER
P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT
OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY
OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F.
OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR
CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING
FORCES AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition
are issues relating to, and borne by, an agreement forged in the turn of the last century between the
Republic of the Philippines and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by
United States military personnel. To further strengthen their defense and security relationship, the
Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under
the treaty, the parties agreed to respond to any external armed attack on their territory, armed
forces, public vessels, and aircraft.1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines
and the United States negotiated for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in
the Philippines.2 With the expiration of the RP-US Military Bases Agreement, the periodic military
exercises conducted between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for
Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on "the complementing strategic interests of the United
States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels
on the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations3 that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon
and Unites States Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA.4
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,5 the Instrument of Ratification, the
letter of the President6 and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees.7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438 recommending
the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-
thirds (2/3) vote9of its members. Senate Resolution No. 443 was then re-numbered as Senate
Resolution No. 18.10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense personnel
may be present in the Philippines, and is quoted in its full text, hereunder:

"Article I
Definitions

"As used in this Agreement, ‘United States personnel’ means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government.

"Within this definition:

"1. The term ‘military personnel’ refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.

"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.

"Article II
Respect for Law

"It is the duty of the United States personnel to respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from
any political activity in the Philippines. The Government of the United States shall take all measures
within its authority to ensure that this is done.

"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities
covered by this agreement.

"2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.

"3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the Philippines:

"(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if any),
branch of service and photograph;

"(b) individual or collective document issued by the appropriate United States


authority, authorizing the travel or visit and identifying the individual or group
as United States military personnel; and

"(c) the commanding officer of a military aircraft or vessel shall present a


declaration of health, and when required by the cognizant representative of
the Government of the Philippines, shall conduct a quarantine inspection and
will certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer
in accordance with the international health regulations as promulgated by the
World Health Organization, and mutually agreed procedures.

"4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.

"5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be responsible
for receiving the person concerned within its own territory or otherwise disposing of
said person outside of the Philippines.

"Article IV

Driving and Vehicle Registration

"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or
license issued by the appropriate United States authority to United States personnel
for the operation of military or official vehicles.

"2. Vehicles owned by the Government of the United States need not be registered,
but shall have appropriate markings.

"Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:


(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the law of
the Philippines.

(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the military
law of the United States over United States personnel in the Philippines.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect
to offenses, including offenses relating to the security of the Philippines, punishable under the laws
of the Philippines, but not under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security of the
United States, punishable under the laws of the United States, but not under the laws
of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.

(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the United
States in relation to.

(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel;
and

(2) offenses arising out of any act or omission done in performance of official
duty.

(c) The authorities of either government may request the authorities of the
other government to waive their primary right to exercise jurisdiction in a
particular case.

(d) Recognizing the responsibility of the United States military authorities to


maintain good order and discipline among their forces, Philippine authorities
will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the
United States request.

(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel
arises out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require
a review of the duty certificate, United States military authorities and
Philippine authorities shall consult immediately. Philippine authorities at the
highest levels may also present any information bearing on its validity. United
States military authorities shall take full account of the Philippine position.
Where appropriate, United States military authorities will take disciplinary or
other action against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.

"4. Within the scope of their legal competence, the authorities of the Philippines and United States
shall assist each other in the arrest of United States personnel in the Philippines and in handling
them over to authorities who are to exercise jurisdiction in accordance with the provisions of this
article.

"5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military authorities of the arrest or detention
of any United States personnel.

"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating
to the offense with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine judicial proceedings
are not completed within one year, the United States shall be relieved of any obligations under this
paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year
period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the
accused, fail to do so.

"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in providing
for the attendance of witnesses and in the collection and production of evidence, including seizure
and, in proper cases, the delivery of objects connected with an offense.

"8. When United States personnel have been tried in accordance with the provisions of this Article
and have been acquitted or have been convicted and are serving, or have served their sentence, or
have had their sentence remitted or suspended, or have been pardoned, they may not be tried again
for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United
States military authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were tried by Philippine
authorities.

"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the
Philippines. At the minimum, United States personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such
witnesses;

(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;

(e) To have free and assisted legal representation of their own choice on the same
basis as nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States


authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.

"10. The confinement or detention by Philippine authorities of United States personnel shall be
carried out in facilities agreed on by appropriate Philippine and United States authorities. United
States Personnel serving sentences in the Philippines shall have the right to visits and material
assistance.

"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction,
and shall not be subject to the jurisdiction of Philippine military or religious courts.

"Article VI
Claims

"1. Except for contractual arrangements, including United States foreign military
sales letters of offer and acceptance and leases of military equipment, both
governments waive any and all claims against each other for damage, loss or
destruction to property of each other’s armed forces or for death or injury to their
military and civilian personnel arising from activities to which this agreement applies.

"2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with United
States law regarding foreign claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss, personal injury or death, caused
by acts or omissions of United States personnel, or otherwise incident to the non-
combat activities of the United States forces.

"Article VII
Importation and Exportation

"1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall be
free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend to any duty, tax, or other
similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be removed
from the Philippines, or disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.

"2. Reasonable quantities of personal baggage, personal effects, and other property
for the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of
their temporary stay in the Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of applicable
duties and taxes imposed in accordance with the laws of the Philippines. The
exportation of such property and of property acquired in the Philippines by United
States personnel shall be free of all Philippine duties, taxes, and other similar
charges.

"Article VIII
Movement of Vessels and Aircraft

"1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.

"2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement of
vessels shall be in accordance with international custom and practice governing such
vessels, and such agreed implementing arrangements as necessary.

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United States armed forces shall observe
local air traffic control regulations while in the Philippines. Vessels owned or operated
by the United States solely on United States Government non-commercial service
shall not be subject to compulsory pilotage at Philippine ports.

"Article IX
Duration and Termination

"This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements for
entry into force. This agreement shall remain in force until the expiration of 180 days from the date
on which either party gives the other party notice in writing that it desires to terminate the
agreement."

Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and
impute to herein respondents grave abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the
Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
US military personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?


c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties
for the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have
not shown any interest in the case, and that petitioners failed to substantiate that they have
sustained, or will sustain direct injury as a result of the operation of the VFA.12 Petitioners, on the
other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance
which justifies their standing.13

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only
that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way." He must show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of.14

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA.
As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its
taxing or spending powers.15 On this point, it bears stressing that a taxpayer’s suit refers to a case
where the act complained of directly involves the illegal disbursement of public funds derived from
taxation.16 Thus, in Bugnay Const. & Development Corp. vs. Laron17, we held:

"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by
the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the
power of judicial review, he must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of
the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public."

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence
of any allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal standing of a
member of the Senate and the House of Representatives to question the validity of a presidential
veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly
uphold petitioners’ standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power
of Congress to grant tax exemptions, are more apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which allegedly impair their legislative powers,
petitioners failed however to sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action.19

Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases,20 where we had occasion to rule:

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed the objection that they were
not proper parties and ruled that ‘transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.’ We have since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA
343)." (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs.
Singson,22 andBasco vs. Phil. Amusement and Gaming Corporation,23 where we emphatically
held:

"Considering however the importance to the public of the case at bar, and in keeping with the Court’s
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of this petition. x x x"

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect
for each others’ acts,25 this Court nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to concur
with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA
has for its subject the presence of foreign military troops in the Philippines. Respondents, on the
contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary visits of United States
personnel engaged in joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."
Section 25, Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State."

Section 21, Article VII deals with treatise or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the
subject treaty, or international agreement, valid and binding on the part of the Philippines. This
provision lays down the general rule on treatise or international agreements and applies to any form
of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII
further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the
other contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases in the
negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed."
Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII,
and that the Senate extended its concurrence under the same provision, is immaterial. For in either
case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional
requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. 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.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited
sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue
and for the sole purpose of determining the number of votes required to obtain the valid concurrence
of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails over
a general one.Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment
must be taken to affect only such cases within its general language which are not within the
provision of the particular enactment.26

In Leveriza vs. Intermediate Appellate Court,27 we enunciated:

"x x x that another basic principle of statutory construction mandates that general legislation must
give way to a special legislation on the same subject, and generally be so interpreted as to embrace
only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96
SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA
760) and that where two statutes are of equal theoretical application to a particular case, the one
designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between "transient’ and
"permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA.
Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign
military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established. The clause does not refer to
"foreign military bases, troops, or facilities" collectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and
independence of one thing from the others included in the enumeration,28 such that, the provision
contemplates three different situations - a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it
under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation:

"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question
is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three,
the requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering
not bases but merely troops?
FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering
only troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some.
We just want to cover everything."29 (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer viable because
of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually used as substitutes for
a land-home base not only of military aircraft but also of military personnel and facilities. Besides,
vessels are mobile as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25
were complied with when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by congress, ratified by a majority of
the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions
of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the
members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty
be "duly concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be "duly concurred in by the Senate," it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in Section 21, Article
VII, which in more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25,
Article XVIII must not be treated in isolation to section 21, Article, VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of
the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the
members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four
(24) Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made,31 will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by
the United States of America.

Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII,
means that the VFA should have the advice and consent of the United States Senate pursuant to its
own constitutional process, and that it should not be considered merely an executive agreement by
the United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that
the VFA is binding on the United States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.

This Court is of the firm view that the phrase "recognized as a treaty" means that the other
contracting partyaccepts or acknowledges the agreement as a treaty.32 To require the other
contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution,33 is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use.34

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty.35 To
be sure, as long as the VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular
designation."36 There are many other terms used for a treaty or international agreement, some of
which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the general
term treaty have little or no legal significance. Certain terms are useful, but they furnish little more
than mere description.37

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use
of terms in the present Convention are without prejudice to the use of those terms, or to the
meanings which may be given to them in the internal law of the State."
Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers.38 International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations.39

In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea
Trading,40 we had occasion to pronounce:

"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular
relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.

"x x x x x x x x x

"Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law
Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L.
ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405,
1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp.
390-407). (Italics Supplied)" (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:

"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything
to make it a treaty, then as far as we are concerned, we will accept it as a treaty."41

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard,
has stated that the United States government has fully committed to living up to the terms of the
VFA.42 For as long as the united States of America accepts or acknowledges the VFA as a treaty,
and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.43 A State may provide in its domestic legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty
provides for such ratification, (b) it is otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative, or was expressed during the negotiation.44

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.45

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to be bound by the terms of the
agreement. Thus, no less than Section 2, Article II of the Constitution,46 declares that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted
rules for the conduct of its international relations. While the international obligation devolves upon
the state and not upon any particular branch, institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed by any branch or subdivision of its
government or any official thereof. As an integral part of the community of nations, we are
responsible to assure that our government, Constitution and laws will carry out our international
obligation.47 Hence, we cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty."48

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle
of pacta sunt servandawhich preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.49

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties.
Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases
impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law.50

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the
sole organ and authority in the external affairs of the country. In many ways, the President is the
chief architect of the nation’s foreign policy; his "dominance in the field of foreign relations is (then)
conceded."51 Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."52

As regards the power to enter into treaties or international agreements, the Constitution vests the
same in the President, subject only to the concurrence of at least two-thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade
it.53 Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts
of ratification and entering into a treaty and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be
validly struck down, much less calibrated by this Court, in the absence of clear showing of grave
abuse of power or discretion.

It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same
to the Senate for concurrence, acted within the confines and limits of the powers vested in him by
the Constitution. It is of no moment that the President, in the exercise of his wide latitude of
discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the
Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision.
Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may
be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for
the purpose of complying with the concurrence requirement embodied in the fundamental law. In
doing so, the President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of
the Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating
to national security, it has not altogether done away with political questions such as those which
arise in the field of foreign relations.54 The High Tribunal’s function, as sanctioned by Article VIII,
Section 1, "is merely (to) check whether or not the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing… (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for
the Court to exercise its corrective power…It has no power to look into what it thinks is apparent
error."55

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate56 performs that power, or exercises its prerogative within the
1âwphi1

boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise
of its discretion and acting within the limits of such power, may not be similarly faulted for having
simply performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character;57 the Senate, as
an independent body possessed of its own erudite mind, has the prerogative to either accept or
reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to
their form in a democratic government such as ours. The Constitution thus animates, through this
treaty-concurring power of the Senate, a healthy system of checks and balances indispensable
toward our nation’s pursuit of political maturity and growth. True enough, rudimentary is the principle
that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the
courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court-
as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then
without power to conduct an incursion and meddle with such affairs purely executive and legislative
in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the
metes and bounds within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner,
Sen. J.R. Salonga.

Footnotes

1
Article V. Any such armed attack and all measures taken as a result thereof shall be
immediately reported to the Security Council of the United Nations. Such measures shall be
terminated when the Security Council has taken the measure necessary to restore and
maintain international peace and security.

2
Joint Report of the Senate Committee on Foreign Relation and the Committee on National
Defense and Security on the Visiting Forces Agreement.

3
Joint Committee Report.

4
Petition, G.R. No. 138698, Annex "B", Rollo, pp. 61-62.

"INSTRUMENT OF RATIFICATION

TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

KNOW YE, that whereas, the Agreement between the government of the Republic of
the Philippines and the Government of the United States of America Regarding the
Treatment of the United States Armed Forces Visiting the Philippines, hereinafter
referred to as VFA, was signed in Manila on 10 February 1998;
WHEREAS, the VFA is essentially a framework to promote bilateral defense
cooperation between the Republic of the Philippines and the United States of
America and to give substance to the 1951 RP-US Mutual Defense Treaty (RP-US
MDT). To fulfill the objectives of the RP-US MDT, it is necessary that regular joint
military exercises are conducted between the Republic of the Philippines and the
United States of America;

WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct
of combined military exercises between the Philippines and the United States armed
forces to ensure interoperability of the RP-US MDT;

WHEREAS, in particular, the VFA provides the mechanism for regulating the
circumstances and conditions under which US armed forces and defense personnel
may be present in the Philippines such as the following inter alia:

(a) specific requirements to facilitate the admission of United States


personnel and their departure from the Philippines in connection with
activities covered by the agreement;

(b) clear guidelines on the prosecution of offenses committed by any member


of the United States armed forces while in the Philippines;

(c) precise directive on the importation and exportation of United States


Government equipment, materials, supplies and other property imported into
or acquired in the Philippines by or on behalf of the United States armed
forces in connection with activities covered by the Agreement; and

(d) explicit regulations on the entry of United States vessels, aircraft, and
vehicles;

WHEREAS, Article IX of the Agreement provides that it shall enter into force on the
date on which the Parties have notified each other in writing, through diplomatic
channels, that they have completed their constitutional requirements for its entry into
force. It shall remain in force until the expiration of 180 days from the date on which
either Party gives the other Party written notice to terminate the Agreement.

NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President


of the Republic of the Philippines, after having seen and considered the
aforementioned Agreement between the Government of the United States of
America Regarding the Treatment of the United States Armed Forces Visiting the
Philippines, do hereby ratify and confirm the same and each and every Article and
Clause thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of
the Republic of the Philippines to be affixed.

GIVEN under my hand at the City of Manila, this 5th day of October, in the year of
Our Lord one thousand nine hundred and ninety-eight.

5
Petition, G.R. No. 138587, Annex "C", Rollo, p. 59.
The Honorable Senate President and
Member of the Senate
Senate of the Philippines
Pasay City

Gentlemen and Ladies of the Senate:

I have the honor to transmit herewith the Instrument of Ratification duly signed by
H.E. President Joseph Ejercito Estrada, his message to the Senate and a draft
Senate Resolution of Concurrence in connection with the ratification of the
AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA
REGARDING THE TREATMENT OF THE UNITED STATES ARMED FORCES
VISITING THE PHILIPPINES.

With best wishes.

Very truly yours,

RONALDO B. ZAMORA
Executive Secretary

6
Petition, G.R. No. 138698, Annex "C".

7
Between January 26 and March 11, 1999, the two Committees jointly held six public
hearings-three in Manila and one each in General Santos, Angeles City and Cebu City.

8
Petition , G.R. No. 138570, Annex "C", Rollo, pp. 88-95.

"WHEREAS, the VFA is essentially a framework for promoting the common security
interest of the two countries; and for strengthening their bilateral defense partnership
under the 1951 RP-US Mutual Defense Treaty;

"x x x x x x x x x

"WHEREAS, the VFA does not give unrestricted access or unhampered movement
to US Forces in the Philippines; in fact, it recognizes the Philippine government as
the sole authority to approve the conduct of any visit or activity in the country by US
Forces, hence the VFA is not a derogation of Philippine sovereignty;

"WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the
restoration of the American bases and facilities in the Philippines, in contravention of
the prohibition against foreign bases and permanent stationing of foreign troops
under Article XVIII, Section 25 of the 1987 Constitution-because the agreement
envisions only temporary visits of US personnel engaged in joint military exercises or
other activities as may be approved by the Philippine Government;

"WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that
may be committed by US personnel within Philippine territory, with the exception of
those incurred solely against the security or property of the Us or solely against the
person or property of US personnel, and those committed in the performance of
official duty;

"x x x x x x x x x

"WHEREAS, by virtue of Article II of the VFA, the United States commits to respect
the laws of the Republic of the Philippines, including the Constitution, which declares
in Article II, Section 8 thereof, a policy of freedom from nuclear weapons consistent
with the national interest;

"WHEREAS, the VFA shall serve as the legal mechanism to promote defense
cooperation between two countries-enhancing the preparedness of the Armed
Forces of the Philippines against external threats; and enabling the Philippines to
bolster the stability of the Pacific area in a shared effort with its neighbor-states;

"WHEREAS, the VFA will enhance our political, economic and security partnership
and cooperation with the United States-which has helped promote the development
of our country and improved the lives of our people;

"WHEREAS, in accordance with the powers and functions of Senate as mandated by


the Constitution, this Chamber, after holding several public hearings and
deliberations, concurs in the President’s ratification of the VFA, for the following
reasons:

(1) The Agreement will provide the legal mechanism to promote defense
cooperation between the Philippines and the U.S. and thus enhance the
tactical, strategic, and technological capabilities of our armed forces;

(2) The Agreement will govern the treatment of U.S., military and defense
personnel within Philippine territory, while they are engaged in activities
covered by the Mutual Defense Treaty and conducted with the prior approval
of the Philippine government; and

(3) The Agreement will provide the regulatory mechanism for the
circumstances and conditions under which U.S. military forces may visit the
Philippines; x x x

"x x x x x x x x x

"WHEREAS, in accordance with Article IX of the VFA, the Philippine government


reserves the right to terminate the agreement unilaterally once it no longer redounds
to our national interest: Now, therefore, be it

"Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the
Agreement between the Government of the Republic of the Philippines and the
United States of America Regarding the Treatment of United States Armed Forces
visiting the Philippines. x x x"

9
The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate
President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon,
(5) Senator Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa Aquino-
Oreta, (8) Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon
Magsaysay, Jr., (11) Senator John Osmeña, (12) Senator Juan Flavier, (13) Senator Mirriam
Defensor-Santiago, (14) Senator Juan Ponce-Enrile, (15) Senator Vicente Sotto III, (16)
Senator Ramon Revilla, (17) Senator Anna Dominique Coseteng, and (18) Senator Gregorio
Honasan.

Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto
Guingona, Jr., (2) Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator
Aquilino Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.

10
See Petition, G.R. No. 138570, Rollo, pp. 105.

11
Minute Resolution dated June 8, 1999.

12
See Consolidated Comment.

13
Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

14
Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September
22, 1987, cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs.
COMELEC, 289 SCRA 337, 343 [1998]; Valley Forge College vs. Americans United, 454 US
464, 70 L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251-
252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].

15
See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

16
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197
SCRA 771 [1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95
SCRA 392 [1980]; Gonzales vs. Marcos, 65 SCRA 624 [1975].

17
176 SCRA 240, 251-252 [1989].

18
235 SCRA 506 [1994].

19
Consolidated Memorandum, p. 11.

20
Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs.
Feliciano, 121 Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil.
894 [1965].

21
21 SCRA 774 [1967].

22
180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110
[1994].

23
197 SCRA 52, 60 [1991].

24
232 SCRA 110 [1994].

25
J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].
26
Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.

27
157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].

28
Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

29
Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

30
1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four
Senators who shall be elected at large by the qualified voters of the Philippines, as may be
provided by law.

31
The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in
2001 was elected Vice-President in the 1998 national elections.

32
Ballentine’s Legal Dictionary, 1995.

33
Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United
States President provides: "He shall have power, by and with the advice and consent of the
Senate to make treaties, provided two-thirds of the senators present concur."

34
J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

35
Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago,
International Law, 1998 Ed. P. 497.

36
Vienna Convention, Article 2.

37
Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th
Ed., p. 480.

38
Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans
Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].

39
Richard J. Erickson, "The Making of Executive Agreements by the United States
Department of Defense: An agenda for Progress," 13 Boston U. Intl. L.J. 58 [1995], citing
Restatement [third] of Foreign Relations Law pt. III, introductory note [1987] and Paul Reuter,
Introduction to the Law of Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in
Consolidated Memorandum, p. 32.

40
3 SCRA 351, 356-357 [1961].

41
4 Record of the Constitutional Commission 782 [Session of September 18, 1986].

42
Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

"Dear Senator Santiago:

I am happy to respond to your letter of April 29, concerning the way the US
Government views the Philippine-US Visiting Forces Agreement in US legal terms.
You raise an important question and I believe this response will help in the Senate
deliberations.

As a matter of both US and international law, an international agreement like the


Visiting Forces Agreement is legally binding on the US Government, In international
legal terms, such an agreement is a ‘treaty.’ However, as a matter of US domestic
law, an agreement like the VFA is an ‘executive agreement,’ because it does not
require the advice and consent of the senate under Article II, section 2 of our
Constitution.

The President’s power to conclude the VFA with the Philippines, and other status of
forces agreements with the other countries, derives from the President’s
responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his
constitutional powers as Commander in Chief of the Armed Forces. Senate advice
and consent is not needed, inter alia, because the VFA and similar agreements
neither change US domestic nor require congressional appropriation of funds. It is
important to note that only about five percent of the international agreement entered
into by the US Governments require Senate advice and consent. However, in terms
of the US Government’s obligation to adhere to the terms of the VFA, there is no
difference between a treaty concurred in by our Senate and an executive agreement.
Background information on these points can be found in the ‘Restatement 3rd of the
Foreign Relations Law of the United States,’ Sec. 301, et seq. [1986].

I hope you find this answer helpful. As the President’s representative to the
Government of the Philippines, I can assure you that the United States Government
is fully committed to living up to the terms of the VFA.

Sincerely yours,

THOMAS C. HUBBARD
Ambassador"

43
Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th
Ed., p. 486.

44
Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational
Law, 1998 Ed., pp. 506-507.

45
Cruz, Isagani, "International Law", 1985 Ed., p. 175.

46
Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

47
Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases
and Materials, 2nd Ed American Casebook Series, p. 136.

48
Gerhard von Glah, supra, p. 487.

49
Harris, p. 634 cited in Coquia, International Law, supra, p. 512.
50
Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb
23, 2000 citing Arroyo vs. De Venecia, 277 SCRA 268 [1997].

51
Cortes, "The Philippine Presidency a study of Executive Power, 2nd Ed.," p. 195.

52
Cruz, Phil. Political Law, 1995 Ed., p. 223.

53
United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland.

54
Arroyo vs. De Venecia, 277 SCRA 269 [1997].

55
Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991);
Llamas vs. Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481
[1971].

56
1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and referendum.

57
See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen
and Unwin) 5th ed., p. 45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319
(1936).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

PUNO, J.:

The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General, they are:

"I

DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR


LEGISLATORS?

II

IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE CONSTITUTION?

III

IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION 25,
ARTICLE XVIII OF THE CONSTITUTION?

IV
DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY?

(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR AND
TRY OFFENSES COMMITTED BY U.S. MILITARY PERSONNEL?

(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE


BY RECLUSIONPERPETUA OR HIGHER?

(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA UNCONSTITUTIONAL?

DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III
OF THE CONSTITUTION?

VI

IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSITUTION VIOLATED BY


THE VFA?

VII

ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS AND
DAMAGES?

VIII

WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE


VFA?

IX

DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER SECTION 7, ARTICLE II
OF THE CONSTITUTION?

IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED OR
UNCERTAIN?"

I like to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates
Sec. 25, Art. XVIII of the Constitution. I shall therefore limit my opinion on this jugular issue.

The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State."
This provision lays down three constitutional requisites that must be complied with before foreign
military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence
should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so
requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a
national referendum held for that purpose; and (3) such treaty should be recognized as a treaty
by the other contracting party.

To start with, respondents, with unrelenting resolve, claim that these constitutional requirements are
not applicable to the VFA. They contend that the VFA, as its title implies, contemplates
merely temporary visits of U.S. military troops in Philippine territory, and thus does not come within
the purview of Sec. 25, Art. XVIII of the Constitution. They assert that this constitutional provision
applies only to the stationing or permanent presence of foreign military troops on Philippine soil
since the word "troops" is mentioned along with "bases" and "facilities" which are permanent in
nature.1 This assertion would deserve serious attention if the temporary nature of these visits were
indeed borne out by the provisions of the VFA. If we turn, however, a heedful eye on the provisions
of the VFA as well as the interpretation accorded to it by the government officials charged with its
negotiation and implementation, the temporary nature of the visits would turn out to be a mirage in a
desert of vague provisions of the VFA. Neither the VFA nor the Mutual Defense Treaty between the
Republic of the Philippines and the United States of America2 to which the VFA refers in its
preamble,3 provides the slightest suggestion on the duration of visits of U.S. forces in Philippine
territory. The joint public hearings on the VFA conducted by the Senate Committee on Foreign
Relations and the Senate Committee on National Defense and Security give us a keyhole to the time
frame involved in these visits.

Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the VFA, testified
before the said committees that even before the signing of the VFA, Philippine and U.S. troops
conducted joint military exercises in Philippine territory for two days to four weeks at the frequency of
ten to twelve exercises a year. The "Balikatan", the largest combined military exercise involving
about 3,000 troops, lasted at an average of three to four weeks and occurred once every year or one
and a half years.4 He further declared that the VFA contemplates the same time line for visits of U.S.
troops, but argued that even if these troops conduct ten to twelve exercises a year with each
exercise lasting for two to three weeks, their stay will not be uninterrupted, hence, not
permanent.5 Secretary of National Defense Orlando S. Mercado further testified that the VFA will
allow joint military exercises between the Philippine and U.S. troops on a larger scale than those we
had been undertaking since 1994.6 As the joint military exercises will be conducted on a larger scale,
it would be reasonable to project an escalation of the duration as well as frequency of past joint
military exercises between Philippine and U.S. troops.

These views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does
not provide for a specific and limited period of effectivity. It instead provides an open-ended term in
Art. IX, viz: ". . . (t)his agreement shall remain in force until the expiration of 180 days from the date
on which either party gives the other party notice in writing that it desires to terminate the
agreement." No magic of semantics will blur the truth that theVFA could be in force indefinitely.
The following exchange between Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the
public hearings on the VFA is apropos to the issue:

"SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to last only within one
year, for example, the various visits, but can cover eternity until the treaty is abrogated?

MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our national security, and
until conditions are such that there is no longer a possible threat to our national security, then you
will have to continue exercising, Your Honor, because we cannot take a chance on it.
SEN. PIMENTEL. So, this will be temporarily permanent, or permanently temporary?

MR. SIAZON. Permanently temporary, Your Honor."7

The worthiest of wordsmiths cannot always manipulate the meaning of words. Black’s Law
Dictionary defines "temporary" as "that which is to last for a limited time only, as distinguished from
that which is perpetual or indefinite in its duration"8 and states that "permanent" is "generally
opposed to ‘temporary’ but not always meaning perpetual."9 The definitions of "temporary" and
"permanent" in Bouvier’s Law Dictionary are of similar import: temporary is "that which is to last for a
limited time"10 while permanent "does not always embrace the idea of absolute perpetuity."11 By
these definitions, even the contingency that the Philippines may abrogate the VFA when there is no
longer any threat to our national security does not make the visits of U.S. troops temporary, nor do
short interruptions in or gaps between joint military exercises carve them out from the definition of
"permanent" as permanence does not necessarily contemplate absolute perpetuity.

It is against this tapestry woven from the realities of the past and a vision of the future joint military
exercises that the Court must draw a line between temporary visits and permanent stay of U.S.
troops. The absence in the VFA of the slightest suggestion as to the duration of visits of U.S.
troops in Philippine territory, coupled with the lack of a limited term of effectivity of the VFA
itself justify the interpretation that the VFA allows permanent, not merely temporary,
presence of U.S. troops on Philippine soil. Following Secretary Siazon’s testimony, if the visits of
U.S. troops could last for four weeks at the most and at the maximum of twelve times a year for an
indefinite number of years, then by no stretch of logic can these visits be characterized as temporary
because in fact, the U.S. troops could be in Philippine territory 365 days a year for 50 years -- longer
than the duration of the 1947 RP-US Military Bases Agreement12 which expired in 1991 and which,
without question, contemplated permanent presence of U.S. bases, facilities, and troops.

To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same public hearings
that the subject matter of the VFA, i.e., the visits and activities of U.S. troops in Philippine territory,
partakes of a permanent character. He declared with clarity:

"MR. CUEVAS. . . . Why we considered this as a treaty is because the subject therein treated had
some character of permanence; and secondly, there is a change insofar as some of our laws are
concerned."13

Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates permanent
presence of foreign military troops alone, or temporary presence as well, the VFA comes within its
purview as it allows the permanent presence of U.S. troops on Philippine soil. Contrary to
respondents’ allegation, the determination of the permanent nature of visits of U.S. troops under the
VFA is an issue ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner by which U.S.
troops may be allowed to enter Philippine territory. We need not wait and see, therefore, whether the
U.S. troops will actually conduct military exercises on Philippine soil on a permanent basis before
adjudicating this issue. What is at issue is whether the VFA allows such permanent presence of
U.S. troops in Philippine territory.

To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the Constitution,
it is necessary to ascertain the intent of the framers of the Constitution as well as the will of the
Filipino people who ratified the fundamental law. This exercise would inevitably take us back to the
period in our history when U.S. military presence was entrenched in Philippine territory with the
establishment and operation of U.S. Military Bases in several parts of the archipelago under the
1947 R.P.-U.S. Military Bases Agreement. As articulated by Constitutional Commissioner Blas F.
Ople in the 1986 Constitutional Commission deliberations on this provision, the 1947 RP-US Military
Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the
eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws
of the United States, it was a mere executive agreement.14 This asymmetry in the legal treatment
of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty.
Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the
commission emerged that thisanomalous asymmetry must never be repeated.15 To correct this
historical aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the
presence of foreign military bases, troops, and facilities should also be "recognized as a treaty by the
other contracting party." In plain language, recognition of the United States as the other
contracting party of the VFA should be by the U.S. President with the advice and consent of
the U.S. Senate.16 The following exchanges manifest this intention:

"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there
anything in this formulation, whether that of Commissioner Bernas or of Commissioner Romulo, that
will prevent the Philippine government from abrogating the existing bases agreement?

FR. BERNAS. To my understanding, none.

MR. ROMULO. I concur with Commissioner Bernas.

MR. OPLE. I was very keen to put this question because I had taken the position from the beginning
- and this is embodied in a resolution filed by Commissioners Natividad, Maambong and Regalado -
that it is very important that the government of the Republic of the Philippines be in a position to
terminate or abrogate the bases agreement as one of the options. . . . we have acknowledged
starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty
under Philippine law. But as far as the Americans are concerned, the Senate never took
cognizance of this and therefore, it is an executive agreement. That creates a wholly
unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take,
if the government of our country will deem it in the national interest to terminate this agreement or
even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the
flaws of the 1947 Military Bases Agreement. . .

MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care of
Commissioner Ople’s concerns.

The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be
renegotiated, it must be under the terms of a new treaty. The second is the concluding phrase which
says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."

xxx

MR. SUAREZ. Is the proposal prospective and not retroactive in character?

FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present agreement.
However, if a decision should be arrived at that the present agreement is invalid, then even prior to
1991, this becomes operative right away.

MR. SUAREZ. In other words, we do not impress the previous agreements with a valid character,
neither do we say that they are null and void ab initio as claimed by many of us here.
FR. BERNAS. The position I hold is that it is not the function of this Commission to pass judgment
on the validity or invalidity of the subsisting agreement.

MR. SUAREZ. . . . the proposal requires recognition of this treaty by the other contracting nation.
How would that recognition be expressed by that other contracting nation? That is in accordance
with their constitutional or legislative process, I assume.

FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United
States, because it is only the United States that would have the possibility of being allowed to have
treaties here, then we would have to require that the Senate of the United States concur in the
treaty because under American constitutional law, there must be concurrence on the part of
the Senate of the United States to conclude treaties.

xxx

FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I
meanit must perform all the acts required for the agreement to reach the status of a treaty
under their jurisdiction." (emphasis supplied)17

In ascertaining the VFA’s compliance with the constitutional requirement that it be "recognized as a
treaty by the other contracting state," it is crystal clear from the above exchanges of the
Constitutional Commissioners that the yardstick should be U.S. constitutional law. It is therefore
apropos to make a more in depth study of the U.S. President’s power to enter into executive
agreements under U.S. constitutional law.

Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall have Power, by
and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur." The U.S. Constitution does not define "treaties". Nevertheless, the
accepted definition of a "treaty" is that of "an agreement between two or more states or international
organizations that is intended to be legally binding and is governed by international law."18 Although
the United States did not formally ratify the Vienna Convention on the Law of Treaties, its definition
of a treaty has been applied by U.S. courts and the State Department has stated that the Vienna
Convention represents customary international law.19 The Vienna Convention defines a treaty as "an
international agreement concluded between States in written form and governed by international
law."20 It has been observed that this definition is broader than the sense in which "treaty" is used in
the U.S. Constitution. In U.S. practice, a "treaty" is only one of four types of international
agreements, namely: Article II treaties, executive agreements pursuant to a treaty,
congressional-executive agreements, and sole executive agreements.21

The term "executive agreement" is used both colloquially and in scholarly and governmental
writings as a convenient catch-all to subsume all international agreements intended to bind the
United States and another government, other than those which receive consent of two-thirds of the
U.S. Senate.22 The U.S. Constitution does not expressly confer authority to make these
executive agreements, hence the authority to make them, their scope, and legal force have been
the subject of a long-ongoing debate.23 This, notwithstanding,executive agreements have grown to
be a primary instrument of foreign policy in the United States. In 1789-1839, the United States
concluded 60 treaties and only 27 executive agreements. In 1930-1939, the United States entered
into 142 treaties and 144 executive agreements. In 1940-1949, 116 treaties and 919 executive
agreements were concluded by the United States. From 1980-1988, the United States entered into
136 treaties and 3,094 executive agreements. In sum, by 1988, there were 12,778 executive
agreements as opposed to 1,476 treaties, accounting for about 90% of the international agreements
concluded by the United States.24
The upsurge in the use of executive agreements in the post World War II period may be attributed to
several factors. President Franklin Roosevelt set a precedent for the more recent presidents by, for
instance, completing the Destroyer-for-Bases deal of 1940 with an executive agreement. President
Harry S. Truman likewise concluded the Potsdam Agreement by executive agreement. The U.S.
Presidents also committed military missions in Honduras and El Salvador in the 1950’s; pledged
security to Turkey, Iran, and Pakistan; acquired permission from the British to use the island of
Diego Garcia for military purposes in the 1960’s; and established a military mission in Iran in 1974,
all by way of executive agreements.25 U.S. Supreme Court decisions affirming the validity of
executive agreements have also contributed to the explosive growth in their usage.26 Another factor
that accelerated its use was the foreign policy cooperation between Congress and the executive as
expressed in the postwar refrain that "politics must end at the water’s edge."27 The fourth factor is the
expansion of executive institutions including foreign policy machinery and information.28 The fifth
factor is the Cold War which put the United States in a "constant state of emergency" which required
expediency in decisions and actions regarding the use of force or diplomacy. Last but not the least,
the nuclear weapons race and instantaneous global communication made centralized foreign policy
machinery under the U.S. President necessary.29

These executive agreements which have grown to be the primary instrument of U.S. foreign
policy may be classified into three types, namely:

(1) Treaty-authorized executive agreements, i.e., agreements made by the President pursuant to
authority conferred in a prior treaty;30

(2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the President
with prior Congressional authorization or enactment or (b) confirmed by both Houses of Congress
after the fact of negotiation;31 and

(3) Presidential or sole executive agreements, i.e., agreements made by the President based
on his exclusive presidential powers, such as the power as commander-in-chief of the armed
forces pursuant to which he conducts military operations with U.S. allies, or his power to
receive ambassadors and recognize foreign governments.32

This classification is important as the different types of executive agreements bear


distinctions in terms of constitutional basis, subject matter, and legal effects in the domestic
arena. For instance,treaty-authorized executive agreements do not pose constitutional
problems as they are generally accepted to have been pre-approved by the Senate when the
Senate consented to the treaty which authorized the executive to enter into executive agreements;
another view supporting its acceptance is that the Senate delegated to the President the authority to
make the executive agreement.33 In comparison, the constitutionality of congressional-executive
agreements has provoked debate among legal scholars. One view, espoused
by interpretivists such as Edwin Borchard, holds that all international agreements must be strictly in
accordance with Sec. 2, Art. II of the U.S. Constitution, and thus congressional-executive
agreements are constitutionally invalid. According to them, allowing congressional-executive
agreements would enhance the power of the President as well as of the House of Representatives,
in utter violation of the intent of the framers of the U.S. Constitution.34 The opposite school of
thought, led by Myer S. McDougal and Asher Lans, holds that congressional-executive agreements
and treaties are interchangeable, thus, such agreements are constitutional. These non-
interpretivists buttress their stance by leaning on the constitutional clause that prohibits States,
without consent of Congress, from "enter(ing) into any Agreement or Compact with another State, or
with a Foreign Power." By making reference to international agreements other than treaties, these
scholars argue that the framers of the Constitution intended international agreements, other than
treaties, to exist. This school of thought generally opposes the "mechanical, filiopietistic theory,
(which) purports to regard the words of the Constitution as timeless absolutes"35 and gives emphasis
to the necessity and expediency of congressional-executive agreements in modern foreign
affairs.36 Finally, sole executive agreements which account for a relatively small percentage of
executive agreements are the most constitutionally problematic since the system of checks and
balances is inoperative when the President enters into an executive agreement with neither the
Senate’s or Congress’ consent. This last type of executive agreement draws authority upon the
President’s enumerated powers under Article II of the U.S. Constitution, such as the President’s
power as Commander-in-Chief of the U.S. army and navy.37

I respectfully submit that, using these three types of executive agreements as bases for
classification, the VFA would not fall under the category of an executive agreement made by the
president pursuant to authority conferred in a prior treaty because although the VFA makes
reference to the Mutual Defense Treaty in its Preamble,38 the Mutual Defense Treaty itself does not
confer authority upon the U.S. President to enter into executive agreements in implementation of the
Treaty. Issues have occasionally arisen about whether an executive agreement was entered into
pursuant to a treaty. These issues, however, involved mere treaty interpretation.39 In Wilson v.
Girard, 354 US 524 (1957), the U.S. Supreme Court had occasion to interpret Art. III of the Security
Treaty Between the United States of America and Japan which stated that, "(t)he conditions which
shall govern the disposition of armed forces of the United States of America in and about Japan shall
be determined by administrative agreements between the two Governments."40 Pursuant to this
provision in the treaty, the executive entered into an administrative agreement covering, among
other matters, jurisdiction of the United States over offenses committed in Japan by members of the
U.S. armed forces. The U.S. Supreme Court recognized the validity of the Administrative Agreement
as it was concluded by the President pursuant to the authority conferred upon him by Art. III of the
Security Treaty between Japan and the United States to make administrative agreements between
the two governments concerning "(t)he conditions which shall govern the disposition of armed forces
of the United States of America in and about Japan."

Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual Defense Treaty
which provides that, "(i)n order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their individual and
collective capacity to resist armed attack."41 The alleged authorization is not as direct and
unequivocal as Art. III of the Security Treaty Between the U.S. and Japan, hence it would be
precarious to assume that the VFA derives authorization from the Mutual Defense Treaty. The
precariousness is heightened by the fact that when the U.S. Senate ratified the Agreement Between
the Parties to the North Atlantic Treaty Regarding the Status of Their Forces42 which was concluded
pursuant to the North Atlantic Treaty (NATO),43 the Senate included in its instrument of ratification
statements on matters of jurisdiction over U.S. forces stationed abroad, among which was an
admonition that the Agreement’s provisions on criminal jurisdiction which have similar features as
the VFA, do not constitute a precedent for future agreements. We can reasonably gather from the
U.S. Senate’s statements that criminal jurisdiction over U.S. forces stationed abroad is a matter of
Senate concern, and thus Senate authorization for the President to enter into agreements touching
upon such jurisdictional matters cannot so easily be assumed.

Neither does the VFA fall under the category of a Congressional-Executive Agreement as it
was not concluded by the U.S. President pursuant to Congressional authorization or enactment nor
has it been confirmed by the U.S. Congress.

At best, the VFA would be more akin to a sole or presidential executive agreement which
would be valid if concluded on the basis of the U.S. President’s exclusive power under the
U.S. Constitution. Respondents argue that except for the Status of Forces Agreement (SOFA)
entered into pursuant to the NATO, the United States, by way of executive agreements, has entered
into 78 Status of Forces Agreements (SOFA) which extend privileges and immunities to U.S. forces
stationed abroad,44 similar to the provisions of the VFA. Respondents have failed, however, to qualify
whether these executive agreements are sole executive agreements or were concluded pursuant to
Congressional authorization or were authorized by treaty. This detail is important in view of the
above discussion on the sense of the Senate on criminal jurisdiction over U.S. forces stationed
abroad.

It will contribute to the elucidation of the legal status of the VFA under U.S. law if we compare the
legal force of sole executive agreements and of treaties. Under international law, treaties and
executive agreements equally bind the United States.45 If there is any distinction between treaties
and executive agreements, it must be found in U.S. constitutional law.46 The distinctions, if any,
between the legal force of treaties and executive agreements on the domestic plane may be
treated on three levels, namely, vis-a-vis: (1) state law; (2) acts of Congress and treaties; and
(3) the U.S. Constitution.

The Supremacy Clause of the U.S. Constitution provides:

"This Constitution, and the Law of the United States which shall be made in pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding."47

It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over
state law. Thus, the Warsaw Convention to which the United States is a signatory preempts the
California law on airline liability.48 The U.S. Supreme Court has ruled in unmistakable terms that a
treaty enjoys supremacy over state law,viz:

"Plainly, the external powers of the United States are to be exercised without regard to state
laws or policies. The supremacy of a treaty in this respect has been recognized from the
beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing
state laws, as far as they contravene its operation, the treaty would be ineffective. "To counter-act it
by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and
involve us in war." 3 Elliot, Debates, 515. . . . this rule in respect of treaties is established by the
express language of cl. 2, Art. 6, of the Constitution. . . ."(emphasis supplied)49

It is also generally conceded that sole executive agreements are supreme over state law and
policy. Two cases decided by the U.S. Supreme Court support this view.

The first of these two cases, United States v. Belmont,50 involved the Litvinov Assignment, a sole
executive agreement executed between the United States and the Soviet Government. In 1918, the
Soviet government, by laws and decrees, nationalized, among others, a Russian corporation, and
appropriated its assets including a sum of money deposited with Belmont, a private banker doing
business in New York. The sum of money remained Russian property until 1933, at which time the
Soviet government released and assigned to the United States all amounts due the Soviet
government from American nationals, including the deposit account of the Russian corporation with
Belmont. The assignment, better known as the Litvinov Assignment, was effected by an exchange of
diplomatic correspondence between the Soviet government and the United States to bring about a
final settlement of the claims and counter-claims between the Soviet government and the United
States. Coincident with the assignment, the U.S. President recognized the Soviet Government and
normal diplomatic relations were established between the two governments.51

Upon demand duly made by the United States, the executors of Belmont’s will failed and refused to
pay the sum of money deposited by the Russian corporation with Belmont. The United States thus
filed a suit in a federal district court to recover the sum of money. The court below held that the situs
of the bank deposit was within the State of New York and not within Soviet territory. Thus, the
nationalization decree, if enforced, would amount to an act of confiscation which was contrary to the
controlling public policy of New York. The U.S. Supreme Court, however, held that no state policy
could prevail against the Litvinov Assignment.52 It ruled as follows:

"The assignment and the agreements in connection therewith did not, as in the case of treaties,
as that term is used in the treaty making clause of the Constitution (Sec. 2, Art. 2), require the
advice and consent of the Senate.

A treaty signifies "a compact made between two or more independent nations with a view to the
public welfare." B. Altman & Co. v. United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct.
593. Butan international compact, as this was, is not always a treaty which requires the
participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi,
a postal convention, and agreements like that now under consideration are illustrations." (emphasis
supplied)53

On the supremacy of executive agreements over state law, it ruled as follows:

"Plainly, the external powers of the United States are to be exercised without regard to state
laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning.
Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws,
as far as they contravene its operation, the treaty would be ineffective. "To counter-act it by the
supremacy of the state laws, would bring on the Union the just charge of national perfidy, and
involve us in war." 3 Elliot, Debates, 515. . . And while this rule in respect of treaties is established by
the express language of cl. 2, Art. 6, of the Constitution, the same rule would result in the case of
all international compacts and agreements from the very fact that complete power over
international affairs is in the national government and is not and cannot be subjected to any
curtailment or interference on the part of the several states." (emphasis supplied)54

The other case, United States v. Pink,55 likewise involved the Litvinov Assignment. The U.S.
Supreme Court here reiterated its ruling in the Belmont case and held that the Litvinov Assignment
was an international compact or agreement having similar dignity as a treaty under the supremacy
clause of the U.S. Constitution.56

While adherents of sole executive agreements usually point to these two cases as bearing judicial
imprimatur of sole executive agreements, the validity of sole executive agreements seems to have
been initially dealt with by the U.S. Supreme Court in 1933 in Monaco v. Mississippi wherein Chief
Justice Hughes stated that, "(t)he National Government, by virtue of its control of our foreign
relations is entitled to employ the resources of diplomatic negotiations and to effect such an
international settlement as may be found to be appropriate, through treaty, agreement of
arbitration, or otherwise."57

Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once again upheld the validity
of a sole executive agreement in Dames & Moore v. Regan.58 This case involved the Algiers
Accord, an executive agreement negotiated and concluded by President Carter and confirmed by
President Reagan to resolve the Iran Hostage Crisis in 1981. That agreement provided, among
others, that the United States and Iran agreed to cancel certain claims between them and to
establish a special tribunal to resolve other claims, including those by U.S. nationals against Iran.
The United States also agreed to close its courts to those claims, as well as to suits by U.S. citizens
against the government of Iran for recovery of damages arising from the Hostage Crisis. Although
the agreement was entered into by the President pursuant to Congressional authorization, the Court
found that the President’s action with regard to claims was not so authorized. Nevertheless, the U.S.
Supreme Court, noting the power of presidents in foreign affairs which includes the power to settle
claims, as well as Congressional acquiescence to such practice, upheld the validity of the Algiers
Accord.

Upon the other hand, those opposed to sole executive agreements argue that the pronouncements
of the Court in the Belmont and Pink cases mean that sole executive agreements override state
legislation only when foundedupon the President’s constitutional power to recognize foreign
governments.59

While treaties and sole executive agreements have the same legal effect on state law, sole
executive agreements pale in comparison to treaties when pitted against prior inconsistent
acts of Congress. The U.S. Supreme Court has long ago declared that the Constitution mandates
that a treaty and an act of legislation are both "supreme law of the land." As such, no supreme
efficacy is given to one over the other. If the two relate to the same subject matter and are
inconsistent, the one later in date will prevail, provided the treaty is self-executing,60 i.e., "whenever it
operates of itself without aid of legislation."61 In The Cherokee Tobacco (Boudinot v. United
States),62 the U.S. Supreme Court also held that where there is repugnance between a treaty and an
Act of Congress, "(a) treaty may supersede a prior Act of Congress . . . and an Act of Congress may
supersede a prior treaty. . . ."63 Settled is the rule, therefore, that a treaty supersedes an earlier
repugnant Act of Congress, and an Act of Congress supersedes an earlier contradictory treaty.64 As
a corollary, a treaty, being placed on the same footing as an act of legislation,65 can repeal or modify
a prior inconsistent treaty.

In the case of sole executive agreements, commentators have been in general agreement that
unlike treaties,sole executive agreements cannot prevail over prior inconsistent federal
legislation. Even proponents of sole executive agreements admit that while a self-executing treaty
can supersede a prior inconsistent statute, it is very doubtful whether a sole executive agreement, in
the absence of appropriate legislation, will be given similar effect.66 Wallace McClure, a leading
proponent of the interchangeability of treaties and executive agreements, opined that it would be
contrary to "the entire tenor of the Constitution" for sole executive agreements to supersede federal
law.67 The Restatement (Third) of the Foreign Relations Law of the United States postulates that a
sole executive agreement could prevail at least over state law, and (only) possibly federal law
without implementing legislation.68 Myer S. McDougal and Asher Lans who are staunch advocates of
executive agreements also concede that sole executive agreements will not ordinarily be valid if
repugnant to existing legislation.69

In United States v. Guy W. Capps, Inc.,70 a leading lower court decision discussing the issue of
supremacy of executive agreements over federal legislation, the Fourth Circuit held that, "the
executive agreement was void because it was not authorized by Congress and contravened
provisions of a statute dealing with the very matter to which it related..."71 The U.S. Supreme Court
itself has "intimated that the President might act in external affairs without congressional authority,
but not that he might act contrary to an Act of Congress."72 The reason for this is that the U.S.
President’s power to enter into international agreements derives from his position as Chief
Executive.By Sec. 7, Art. 1 of the U.S. Constitution, the president does not have power to
repeal existing federal laws. Consequently, he cannot make an indirect repeal by means of a
sole executive agreement.73

On the other side of the coin, it is argued, that when the U.S. President enters into a sole executive
agreement pursuant to his exclusive presidential authority in the field of foreign relations, such
agreement may prevail over prior inconsistent federal legislation.74 In this situation, the doctrine of
separation of powers may permit the U.S. President to disregard the prior inconsistent Act of
Congress as an "unconstitutional invasion of his power."75However, aside from lacking firm legal
support, this view has to contend with the problem of determining which powers are exclusively
executive and which powers overlap with the powers of Congress.76

Again, although it is doubtful whether sole executive agreements can supersede prior inconsistent
federal legislation, proponents of sole executive agreements interpret the Pink case to mean that
sole executive agreements are on equal footing with a treaty, having been accorded the status of
"law of the land" under the supremacy clause and the Litvinov Assignment having been recognized
to have similar dignity as a treaty.77 As such, it is opined that a sole executive agreement may
supersede a prior inconsistent treaty. Treaties of the United States have in fact been terminated on
several occasions by the President on his own authority.78 President Roosevelt terminated at least
two treaties under his independent constitutional powers: the extradition treaty with Greece, in 1933,
and the Treaty of Commerce and Navigation with Japan, in 1939.79 That sole executive agreements
may repeal or terminate a treaty is impliedly recognized in Charlton v. Kelly80 as follows: "The
executive department having thus elected to waive any right to free itself from the obligation [of the
treaty], it is the plain duty of the court to recognize the obligation.81

As against the U.S. Constitution, treaties and sole executive agreements are in equal footing
as they are subject to the same limitations. As early as 1870, the U.S. Supreme Court declared
that, "a treaty cannot change the Constitution or be held valid if it be in violation of that
instrument."82 In Missouri v. Holland,83 it was held that treaties must not violate the
Constitution.84 The U.S. Supreme Court also discussed the constitutionally implied limitations on the
treaty making power in Reid v. Covert,85 where Justice Black stated that "(n)o agreement with a
foreign nation can confer power on the Congress, or any other branch of Government, which is free
from the restraints of the Constitution."86 He concluded that the U.S. Constitution provides limits to
the acts of the president, the joint action of the president and the Senate, and consequently limits the
treaty making power.87

There is no dispute that the constitutional limitations relating to treaties also apply to sole executive
agreements. It is well-settled that the due process clause of the Fifth Amendment and other
substantive provisions of the U.S. Constitution constitute limitations on both treaties and executive
agreements.88 Numerous decisions have also held that both treaties and sole executive agreements
cannot contravene private rights protected by the U.S. Constitution.89

In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S.
constitutional law, with special attention on the legal status of sole executive agreements, I
respectfully submit that the Court will be standing on unstable ground if it places a sole
executive agreement like the VFA on the same constitutional plateau as a treaty. Questions
remain and the debate continues on the constitutional basis as well as the legal effects of
sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international
and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine
Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- "(o)ften the
treaty process will be used at the insistence of other parties to an agreement because they believe
that a treaty has greater ‘dignity’ than an executive agreement, because its constitutional
effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the
United States and make its subsequent abrogation or violation less likely."90

With the cloud of uncertainty still hanging on the exact legal force of sole executive
agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of
our country by drawing a bright line between the dignity and status of a treaty in contrast
with a sole executive agreement. However we may wish it, the VFA, as a sole executive
agreement, cannot climb to the same lofty height that the dignity of a treaty can reach.
Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987
Constitution that the agreement allowing the presence of foreign military troops on Philippine
soil must be "recognized as a treaty by the other contracting state."

I vote to grant the petitions.

Footnotes

1
Rollo, pp. 140-141; Consolidated Comment, pp. 20-21.

2
Entered into force on August 27, 1952.

3
The Preamble of the VFA states in relevant part as follows:

The Government of the Republic of the Philippines and the Government of the United States
of America,

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; xxx

4
Transcript of Committee Meeting, Committee on Foreign Relations, January 26, 1999
[hereinafter referred to as Transcript], p. 21.

5
Id., pp. 103-104.

6
Id., p. 34.

7
Id., p. 104.

8
Black’s Law Dictionary (6th ed.), p. 1464.

9
Id., p. 1139.

10
Bouvier’s Law Dictionary (Third Revision), p. 3254.

11
Id., p. 2568.

12
Entered into force on March 26, 1947.

13
Transcript, p. 139.

14
IV Record of the Constitutional Commission (1986) [hereinafter referred to as the Record],
p. 780.

15
Bernas, Constitution Explicit on VFA, Today, May 5, 1999.

16
Record, p. 781.
17
Record, pp. 780-783.

18
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., pp. 184-185 (1996),
citing Restatement (Third) of the Foreign Relations Law of the United States, sec. 301,
adopting Article 1 of the Vienna Convention on the Law of Treaties.

19
Knaupp, Classifying International Agreements Under U.S. Law: The Beijing Platform as a
Case Study, Brigham Young University Law Review, vol. 1998 (1), p. 244, citing Carter and
Trimble, International Law, p. 110 (1995).

20
Vienna Convention on the Law of Treaties, U.N. Doc. A/C.39/27 (1969), sec. 1, art. II.

21
Knaupp, op cit. supra note 19, citing Carter and Trimble, op. cit. supra note 19 at 165-166.

22
McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements:
Interchangeable Instruments of National Policy: 1, The Yale Law Journal, vol. 54 (2), pp.
197-198 (1945).

23
Henkin, op. cit. supra note 18 at 215.

24
McCormick, American Foreign Policy and Process, 2nd ed., p. 276 (1992), citing Nelson,
Congressional Quarterly’s Guide to the Presidency (Washington, D.C.: Congressional
Quarterly, Inc., 1989), p. 1104.

25
Id., pp. 277-278.

26
Id., p. 278.

27
Id., p. 288.

28
Id., p. 298.

29
Id., p. 300.

30
Rotunda, Nowak, and Young, Treatise on Constitutional Law - Substance and Procedure
[hereinafter referred to as Treatise], p. 394 (1986), citing Restatement of the Law, 2d,
Foreign Relations of the United States, sec. 119 (1965).

31
Id., sec. 120.

32
Id., sec. 121.

33
Randall, The Treaty Power, 51 Ohio St. L.J., p. 6 (1990).

34
Id., p. 7.

35
Id., citing McDougal and Lans, supra note 22 at 212.

36
Randall, op. cit. supra note 33 at 8, citing McDougal and Lans, supra note 22 at 261-306.
37
Randall, op. cit. supra note 33 at 10-11.

38
Supra, note 3.

39
Randall, op. cit. supra note 33 at 6.

40
136 UNTS 216 (1952).

41
Consolidated Memorandum, p. 29.

42
199 UNTS 67 (1954).

43
34 UNTS 244 (1949).

44
Consolidated Memorandum, p. 33.

45
Randall, op. cit. supra note 33 at 4.

46
Weston, Falk, D’Amato, International Law and World Order, p. 926 (1980).

47
U.S. Const., Art. VI, sec. 2.

48
Maris, International Law, An Introduction (1984), p. 224, citing In re Aircrash in Bali, 1982.

49
United States v. Belmont, 81 L. Ed. 1134 (1937).

50
Ibid.

51
Id., p. 1139.

52
Id., at 1137.

53
See note 51, supra.

54
Id., p. 1140.

55
315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942).

56
Id., p. 818.

57
McDougal and Lans, op. cit. supra note 22 at 310, citing Monaco v. Mississippi, 292 U.S.
313, 331 (1934) (emphasis supplied).

58
453 U.S. 654 (1981).

59
For criticism of such view, see Mathews, The Constitutional Power of the President to
Conclude International Agreements, The Yale Law Journal, vol. 64, p. 376 (1954-1955) and
McCormick, American Foreign Policy and Process, 2nd ed., p. 282 (1992), citing Henkin,
"Foreign Affairs and the Constitution," Foreign Affairs 66 (Winter 1987/88), p. 185.
60
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p. 209 (1996), citing
Whitney v. Robertson, 124 U.S. 190, 194 (1888).

61
Id., p. 199, quoting Chief Justice Marshall.

62
11 Wallace 616 (1870).

63
Byrd, Jr., Treaties and Executive Agreements in the United States, Their Separate Roles
and Limitations, p. 82 (1960).

64
Id., p. 83.

65
Supra, note 60, p. 209.

66
Mathews, op. cit. supra note 59 at p. 381, citing Lissitzyn, The Legal Status of Executive
Agreements on Air Transportation, 17 J. Air L. & Comm. 436, 444 (1950); Corwin, The
President’s Control of Foreign Relations 120 (1917); Hearings before Subcommittee of
Senate Committee on the Judiciary on S.J. Res. 1 & S.J. Res. 43, 83d Cong., 1st sess. 224,
247 & n.57 (1953); MacChesney, et al., The Treaty Power and the Constitution: The Case
Against Amendment, 40 A.B.A.J. 203, 205 (1954).

67
Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements,
86(4) California Law Review, Note 287 (1998), citing McClure, International Executive
Agreements, p. 343 (1967).

68
Id., p. 729, citing Restatement (Third) of the Foreign Relations Law of the United States,
sec. 303 cmt.j.

69
McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements:
Interchangeable Instruments of National Policy: 1, The Yale Law Journal, vol. 54 (1), p. 317
(1945).

70
204 F.2d 655 (4th Cir. 1953), affirmed on other grounds, 348 U.S. 296, 75 S. Ct. 326, 99
L.Ed. 329 (1955).

71
Treatise, p. 399.

72
Mathews, op. cit. supra note 59 at 381, citing Youngstown & Tube Co. v. Sawyer, 343 U.S.
579, 635-36 n.2 (1952) (concurring opinion of Jackson).

73
Mathews, op. cit. supra note 59 at 381.

74
Treatise, p. 401.

75
See note 69, supra.

See Powell, The President’s Authority over Foreign Affairs: An Executive Branch
76

Perspective, 67 The George Washington Law Review, p. 550 (1999).

77
Mathews, op. cit. supra note 59 at 381.
78
Note 154, Mathews, op. cit. supra note 59, citing Corwin, The President: Office and
Powers 243 (2nd ed. 1941).

79
Id., p. 376, citing Corwin op. cit. supra note 66 at 417.

80
229 U.S. 447, 474, 476 (1913).

81
Note 154, Mathews, op. cit. supra note 59 at 376.

82
Byrd, Treaties and Executive Agreements in the United States, Their separate roles and
limitations, p. 84 (1960), citing The Cherokee Tobacco (Boudinot v. United States), 11
Wallace 616 at 620 (1870).

83
252 U.S. 416 (1920).

84
Maris, International Law, An Introduction, p. 224 (1984).

85
354 U.S. at 16, 77 S.Ct. at 1230.

86
Treatise, p. 387. See also, Geofrey v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.
Ed. 642 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L. Ed. 523 (1872); The
Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21, 20 L. Ed. 227 (1870); Doe v. Braden, 57
U.S. (16 How.) 635, 657, 14 L. Ed. 1090 (1853); New Orleans v. United States, 35 U.S. (10
Pet.) 662, 736, 9 L. Ed. 573 (1836).

87
Ibid.

88
McDougal and Lans, op. cit. supra note 69 at 315.

89
Mathews, op. cit. supra note 59, p. 377, citing Missouri v. Holland, 252 U.S. 416, 433
(1920) (dictum); Geoffrey v. Riggs, 133 U.S. 258, 267 (1890) (same); The Cherokee
Tobacco, 11 Wall. (78 U.S.) 616, 620-21 (1870) (same). See also Henkin, op. cit. supra note
60 at 185.

90
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p. 224 (1996).
Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180050 April 12, 2011

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners,


vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines;
Senate of the Philippines, represented by the SENATE PRESIDENT; House of
Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S.
BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE
ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents,
CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO
CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D.
GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors.

RESOLUTION

NACHURA, J.:

For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20,
2010 filed by Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a)
recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010
Resolution.

To provide a clear perspective of the instant motion, we present hereunder a brief background of the
relevant antecedents—

On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355
(An Act Creating the Province of Dinagat Islands).2 On December 3, 2006, the Commission on
Elections (COMELEC) conducted the mandatory plebiscite for the ratification of the creation of the
province under the Local Government Code (LGC).3 The plebiscite yielded 69,943 affirmative votes
and 63,502 negative votes.4 With the approval of the people from both the mother province of
Surigao del

Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of
provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007
synchronized elections, the Dinagatnons elected their new set of provincial officials who assumed
office on July 1, 2007.5

On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina,
former political leaders of Surigao del Norte, filed before this Court a petition for certiorari and
prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355.6 The Court
dismissed the petition on technical grounds. Their motion for reconsideration was also denied.7

Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed
another petition for certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They
alleged that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act
of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the
provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. They
pointed out that when the law was passed, Dinagat had a land area of 802.12 square kilometers only
and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and
of Section 461 of the LGC, on both counts, viz.—

Constitution, Article X – Local Government

Section 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 the approval by a majority of the votes cast in a plebiscite in the
political units directly affected.

LGC, Title IV, Chapter I

Section 461. Requisites for Creation. – (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a continuous territory of at least two thousand (2,000) square kilometers, as


certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.
(Emphasis supplied.)

On February 10, 2010, the Court rendered its Decision9 granting the petition.10 The Decision
declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population
and land area in the creation of a province under the LGC. Consequently, it declared the
proclamation of Dinagat and the election of its officials as null and void. The Decision likewise
declared as null and void the provision on Article 9(2) of the Rules and Regulations Implementing
the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the
LGC, inasmuch as such exemption is not expressly provided in the law.11

The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective
motions for reconsideration of the Decision. In its Resolution12 dated May 12, 2010,13 the Court
denied the said motions.14
Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit
their second motions for reconsideration, accompanied by their second motions for reconsideration.
These motions were eventually "noted without action" by this Court in its June 29, 2010 Resolution.15

Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to
File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010.
They alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which
provides—

RESOLUTION NO. 8790

WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of
the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to
Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on
02 December 2006 in the Plebiscite for this purpose;

WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and
Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for
congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670
dated 16 September 2009;

WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive
Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a
Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to
comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local
Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;

WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the
Supreme Court;

WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives
representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the
aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for
the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said
position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, [8] all the names of
the candidates for Sangguniang Panlalawigan Members, have already been configured into the
system and can no longer be revised within the remaining period before the elections on May 10,
2010.

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision
of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as
it hereby RESOLVES, to declare that:

a. If the Decision is reversed, there will be no problem since the current system
configuration is in line with the reconsidered Decision, meaning that the Province of
Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate
provinces;

b. If the Decision becomes final and executory before the election, the Province of
Dinagat Islands will revert to its previous status as part of the First Legislative
District, Surigao del Norte.
But because of the current system configuration, the ballots for the Province of
Dinagat Islands will, for the positions of Member, House of Representatives,
Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the
names of the candidates for the said positions.

Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for
the position of Governor, Vice Governor, Member, House of Representatives, First
District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only
candidates for the said position. Likewise, the whole Province of Surigao del Norte,
will, for the position of Governor and Vice Governor, bear only the names of the
candidates for the said position[s].

Consequently, the voters of the Province of Dinagat Islands will not be able to vote
for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of]
Representatives, First Legislative District, Surigao del Norte, and candidates for
Governor and Vice Governor for Surigao del Norte. Meanwhile, voters of the First
Legislative District of Surigao del Norte, will not be able to vote for Members,
Sangguniang Panlalawigan and Member, House of Representatives, Dinagat
Islands. Also, the voters of the whole Province of Surigao del Norte, will not be able
to vote for the Governor and Vice Governor, Dinagat Islands. Given this situation, the
Commission will postpone the elections for Governor, Vice Governor, Member,
House of Representatives, First Legislative District, Surigao del Norte, and Members,
Sangguniang Panlalawigan, First Legislative District, Surigao del Norte, because the
election will result in [a] failure to elect, since, in actuality, there are no candidates for
Governor, Vice Governor, Members, Sangguniang Panlalawigan, First Legislative
District, and Member, House of Representatives, First Legislative District (with
Dinagat Islands) of Surigao del Norte.

c. If the Decision becomes final and executory after the election, the Province of
Dinagat Islands will revert to its previous status as part of the First Legislative District
of Surigao del Norte. The result of the election will have to be nullified for the same
reasons given in Item "b" above. A special election for Governor, Vice Governor,
Member, House of Representatives, First Legislative District of Surigao del Norte,
and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with
Dinagat Islands) will have to be conducted.

xxxx

SO ORDERED.

They further alleged that, because they are the duly elected officials of Surigao del Norte whose
positions will be affected by the nullification of the election results in the event that the May 12, 2010
Resolution is not reversed, they have a legal interest in the instant case and would be directly
affected by the declaration of nullity of R.A. No. 9355. Simply put, movants-intervenors’ election to
their respective offices would necessarily be annulled since Dinagat Islands will revert to its previous
status as part of the First Legislative District of Surigao del Norte and a special election will have to
be conducted for governor, vice governor, and House of Representatives member and Sangguniang
Panlalawigan member for the First Legislative District of Surigao del Norte. Moreover, as residents
of Surigao del Norte and as public servants representing the interests of their constituents, they have
a clear and strong interest in the outcome of this case inasmuch as the reversion of Dinagat as part
of the First Legislative District of Surigao del Norte will affect the latter province such that: (1) the
whole administrative set-up of the province will have to be restructured; (2) the services of many
employees will have to be terminated; (3) contracts will have to be invalidated; and (4) projects and
other developments will have to be discontinued. In addition, they claim that their rights cannot be
adequately pursued and protected in any other proceeding since their rights would be foreclosed if
the May 12, 2010 Resolution would attain finality.

In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three
(3) main arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No.
9355 operates as an act of Congress amending Section 461 of the LGC; (2) that the exemption from
territorial contiguity, when the intended province consists of two or more islands, includes the
exemption from the application of the minimum land area requirement; and (3) that the Operative
Fact Doctrine is applicable in the instant case.

In the Resolution dated July 20, 2010,16 the Court denied the Motion for Leave to Intervene and to
File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on
the ground that the allowance or disallowance of a motion to intervene is addressed to the sound
discretion of the Court, and that the appropriate time to file the said motion was before and not after
the resolution of this case.

On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010
Resolution, citing several rulings17 of the Court, allowing intervention as an exception to Section 2,
Rule 19 of the Rules of Court that it should be filed at any time before the rendition of judgment.
They alleged that, prior to the May 10, 2010 elections, their legal interest in this case was not yet
existent. They averred that prior to the May 10, 2010 elections, they were unaware of the
proceedings in this case. Even for the sake of argument that they had notice of the pendency of the
case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of
Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the
Second District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro,
Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were
elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and Sangguniang
Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became
possessed with legal interest in this controversy.

On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this
case had become final and executory on May 18, 2010. Hence, the above motion.

At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to
Recall Entry of Judgment of movants-intervenors, not on the second motions for reconsideration of
the original parties, and neither on Dinagat’s Urgent Omnibus Motion, which our

esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for
reconsideration. Inasmuch as the motions for leave to admit their respective motions for
reconsideration of the May 12, 2010 Resolution and the aforesaid motions for reconsideration were
already noted without action by the Court, there is no reason to treat Dinagat’s Urgent Omnibus
Motion differently. In relation to this, the Urgent Motion to Recall Entry of Judgment of movants-
intervenors could not be considered as a second motion for reconsideration to warrant the
application of Section 3, Rule 15 of the Internal Rules of the Supreme Court.18 It should be noted that
this motion prays for the recall of the entry of judgment and for the resolution of their motion for
reconsideration of the July 20, 2010 Resolution which remained unresolved. The denial of their
motion for leave to intervene and to admit motion for reconsideration of the May 12, 2010 Resolution
did not rule on the merits of the motion for reconsideration of the May 12, 2010 Resolution, but only
on the timeliness of the intended intervention. Their motion for reconsideration of this denial
elaborated on movants-intervenors’ interest in this case which existed only after judgment had been
rendered. As such, their motion for intervention and their motion for reconsideration of the May 12,
2010 Resolution merely stand as an initial reconsideration of the said resolution.

With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim
that this was a ploy of respondents’ legal tactician to reopen the case despite an entry of judgment.
To be sure, it is actually COMELEC Resolution No. 8790 that set this controversy into motion anew.
To reiterate, the pertinent portion of the Resolution reads:

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will
revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of
the election will have to be nullified for the same reasons given in Item "b" above. A special election
for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao
del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat
Islands) will have to be conducted. (Emphasis supplied.)

Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest
for movants-intervenors only with the specter of the decision in the main case becoming final and
executory. More importantly, if the intervention be not entertained, the movants-intervenors would be
left with no other remedy as regards to the impending nullification of their election to their respective
positions. Thus, to the Court’s mind, there is an imperative to grant the Urgent Motion to Recall Entry
of Judgment by movants-intervenors.

It should be remembered that this case was initiated upon the filing of the petition for certiorari way
back on October 30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of
this case. While it may be argued that their interest in this case should have commenced upon the
issuance of COMELEC Resolution No. 8790, it is obvious that their interest in this case then was
more imaginary than real. This is because COMELEC Resolution No. 8790 provides that should the
decision in this case attain finality prior to the May 10, 2010 elections, the election of the local
government officials stated therein would only have to be postponed. Given such a scenario,
movants-intervenors would not have suffered any injury or adverse effect with respect to the
reversion of Dinagat as part of Surigao del Norte since they would simply have remained candidates
for the respective positions they have vied for and to which they have been elected.

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions." Because
constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question
raised.19

It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion
to Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to
Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated
May 12, 2010 is denied with finality. Indeed, they have sufficiently shown that they have a personal
and substantial interest in the case, such that if the May 12, 2010 Resolution be not reconsidered,
their election to their respective positions during the May 10, 2010 polls and its concomitant effects
would all be nullified and be put to naught. Given their unique circumstances, movants-intervenors
should not be left without any remedy before this Court simply because their interest in this case
became manifest only after the case had already been decided. The consequences of such a
decision would definitely work to their disadvantage, nay, to their utmost prejudice, without even
them being parties to the dispute. Such decision would also violate their right to due process, a right
that cries out for protection. Thus, it is imperative that the movants-intervenors be heard on the
merits of their cause. We are not only a court of law, but also of justice and equity, such that our
position and the dire repercussions of this controversy should be weighed on the scales of justice,
rather than dismissed on account of mootness.

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is
a grave violation of the Constitution; (2) there is an exceptional character of the situation and the
paramount public interest is involved; (3) the constitutional issue raised requires formation of
controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review.20 The second exception attends this case.

This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo,21 where
technicalities of procedure on locus standi were brushed aside, because the constitutional issues
raised were of paramount public interest or of transcendental importance deserving the attention of
the Court. Along parallel lines, the motion for intervention should be given due course since
movants-intervenors have shown their substantial legal interest in the outcome of this case, even
much more than petitioners themselves, and because of the novelty, gravity, and weight of the
issues involved.

Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010
Resolution of movants-intervenors is akin to the right to appeal the judgment of a case, which,
though merely a statutory right that must comply with the requirements of the rules, is an essential
part of our judicial system, such that courts should proceed with caution not to deprive a party of the
right to question the judgment and its effects, and ensure that every party-litigant, including those
who would be directly affected, would have the amplest opportunity for the proper and just
disposition of their cause, freed from the constraints of technicalities.22

Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of
attendant extraordinary circumstances.23 The power to suspend or even disregard rules of procedure
can be so pervasive and compelling as to alter even that which this Court itself had already declared
final.24 In this case, the compelling concern is not only to afford the movants-intervenors the right to
be heard since they would be adversely affected by the judgment in this case despite not being
original parties thereto, but also to arrive at the correct interpretation of the provisions of the LGC
with respect to the creation of local government units. In this manner, the thrust of the Constitution
with respect to local autonomy and of the LGC with respect to decentralization and the attainment of
national goals, as hereafter elucidated, will effectively be realized.

On the merits of the motion for intervention, after taking a long and intent look, the Court finds that
the first and second arguments raised by movants-intervenors deserve affirmative consideration.

It must be borne in mind that the central policy considerations in the creation of local government
units are economic viability, efficient administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC, i.e., income, population and land area, are all
designed to accomplish these results. In this light, Congress, in its collective wisdom, has debated
on the relative weight of each of these three criteria, placing emphasis on which of them should
enjoy preferential consideration.

Without doubt, the primordial criterion in the creation of local government units, particularly of a
province, is economic viability. This is the clear intent of the framers of the LGC. In this connection,
the following excerpts from congressional debates are quoted hereunder—

HON. ALFELOR. Income is mandatory. We can even have this doubled because we thought…
CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic viability of
the new local government unit, the new province?

xxxx

HON. LAGUDA. The reason why we are willing to increase the income, double than the House
version, because we also believe that economic viability is really a minimum. Land area and
population are functions really of the viability of the area, because you have an income level which
would be the trigger point for economic development, population will naturally increase because
there will be an immigration. However, if you disallow the particular area from being converted into a
province because of the population problems in the beginning, it will never be able to reach the point
where it could become a province simply because it will never have the economic take off for it to
trigger off that economic development.

Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead
and provide a minimum of basic services to the population. Over and above that, the provincial
officials should be able to trigger off economic development which will attract immigration, which will
attract new investments from the private sector. This is now the concern of the local officials. But if
we are going to tie the hands of the proponents, simply by telling them, "Sorry, you are now at 150
thousand or 200 thousand," you will never be able to become a province because nobody wants to
go to your place. Why? Because you never have any reason for economic viability.

xxxx

CHAIRMAN PIMENTEL. Okay, what about land area?

HON. LUMAUIG. 1,500 square kilometers

HON. ANGARA. Walang problema ‘yon, in fact that’s not very critical, ‘yong land area because…

CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square
kilometers.

HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and
delivery of basic services.

CHAIRMAN PIMENTEL. Right.

HON. LAGUDA. Actually, when you come down to it, when government was instituted, there is only
one central government and then everybody falls under that. But it was later on subdivided into
provinces for purposes of administrative efficiency.

CHAIRMAN PIMENTEL. Okay.

HON. LAGUDA. Now, what we’re seeing now is that the administrative efficiency is no longer there
precisely because the land areas that we are giving to our governors is so wide that no one man can
possibly administer all of the complex machineries that are needed.

Secondly, when you say "delivery of basic services," as pointed out by Cong. Alfelor, there are
sections of the province which have never been visited by public officials, precisely because they
don’t have the time nor the energy anymore to do that because it’s so wide. Now, by compressing
the land area and by reducing the population requirement, we are, in effect, trying to follow the basic
policy of why we are creating provinces, which is to deliver basic services and to make it more
efficient in administration.

CHAIRMAN PIMENTEL. Yeah, that’s correct, but on the assumption that the province is able to do it
without being a burden to the national government. That’s the assumption.

HON. LAGUDA. That’s why we’re going into the minimum income level. As we said, if we go on a
minimum income level, then we say, "this is the trigger point at which this administration can take
place."25

Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a
province as provided both in the LGC and the LGC-IRR, viz.—

For a Barangay:

LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a contiguous
territory which has a population of at least two thousand (2,000) inhabitants as certified by the
National Statistics Office except in cities and municipalities within Metro Manila and other
metropolitan political subdivisions or in highly urbanized cities where such territory shall have a
certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof
shall not reduce the population of the original barangay or barangays to less than the minimum
requirement prescribed herein.

To enhance the delivery of basic services in the indigenous cultural communities,


barangays may be created in such communities by an Act of Congress,
notwithstanding the above requirement.

(b) The territorial jurisdiction of the new barangay shall be properly identified by
metes and bounds or by more or less permanent natural boundaries. The territory
need not be contiguous if it comprises two (2) or more islands.

(c) The governor or city mayor may prepare a consolidation plan for barangays,
based on the criteria prescribed in this Section, within his territorial jurisdiction. The
plan shall be submitted to the sangguniang panlalawigan or sangguniang
panlungsod concerned for appropriate action. In the case of municipalities within the
Metropolitan Manila area and other metropolitan political subdivisions, the barangay
consolidation plan can be prepared and approved by the sangguniang bayan
concerned.

LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang panlalawigan
shall require prior recommendation of the sangguniang bayan.

(b) New barangays in the municipalities within MMA shall be created only by Act of
Congress, subject to the limitations and requirements prescribed in this Article.

(c) Notwithstanding the population requirement, a barangay may be created in the


indigenous cultural communities by Act of Congress upon recommendation of the
LGU or LGUs where the cultural community is located.

(d) A barangay shall not be created unless the following requisites are present:
(1) Population – which shall not be less than two thousand (2,000)
inhabitants, except in municipalities and cities within MMA and other
metropolitan political subdivisions as may be created by law, or in highly-
urbanized cities where such territory shall have a population of at least five
thousand (5,000) inhabitants, as certified by the NSO. The creation of a
barangay shall not reduce the population of the original barangay or
barangays to less than the prescribed minimum/

(2) Land Area – which must be contiguous, unless comprised by two (2) or
more islands. The territorial jurisdiction of a barangay sought to be created
shall be properly identified by metes and bounds or by more or less
permanent natural boundaries.

Municipality:

LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an average
annual income, as certified by the provincial treasurer, or at least Two million five hundred thousand
pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a
population of at least twenty-five thousand (25,000) inhabitants as certified by the National Statistics
Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands

Management Bureau: Provided, That the creation thereof shall not reduce the land
area, population or income of the original municipality or municipalities at the time of
said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created municipality shall be properly


identified by metes and bounds. The requirement on land area shall not apply where
the municipality proposed to be created is composed of one (1) or more islands. The
territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund
of the municipality concerned, exclusive of special funds, transfers and non-recurring
income.

(d) Municipalities existing as of the date of effectivity of this Code shall continue to
exist and operate as such. Existing municipal districts organized pursuant to
presidential issuances or executive orders and which have their respective set of
elective municipal officials holding office at the time of the effectivity of this Code
shall henceforth be considered regular municipalities.

LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall not be
created unless the following requisites are present:

(i) Income – An average annual income of not less than Two Million Five Hundred
Thousand Pesos (P2,500,000.00), for the immediately preceding two (2) consecutive
years based on 1991 constant prices, as certified by the provincial treasurer. The
average annual income shall include the income accruing to the general fund,
exclusive of special funds, special accounts, transfers, and nonrecurring income;

(ii) Population – which shall not be less than twenty five thousand (25,000)
inhabitants, as certified by NSO; and
(iii) Land area – which must be contiguous with an area of at least fifty (50) square
kilometers, as certified by LMB. The territory need not be contiguous if it comprises
two (2) or more islands. The requirement on land area shall not apply where the
proposed municipality is composed of one (1) or more islands. The territorial
jurisdiction of a municipality sought to be created shall be properly identified by
metes and bounds.

The creation of a new municipality shall not reduce the land area, population, and
income of the original LGU or LGUs at the time of said creation to less than the
prescribed minimum requirements. All expenses incidental to the creation shall be
borne by the petitioners.

City:

LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be
converted into a component city if it has an average annual income, as certified by the Department
of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years
based on 1991 constant prices, and if it has either of the following requisities:

(i) a contiguous territory of at least one hundred (100) square kilometers, as


certified by the Lands Management Bureau; or,

(ii) a population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office: Provided, That, the
creation thereof shall not reduce the land area, population, and income of the
original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by


metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need
not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created unless the
following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million Pesos
(P20,000,000.00), for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average annual income shall include
the income accruing to the general fund, exclusive of special funds, special accounts,
transfers, and nonrecurring income; and

(2) Population or land area – Population which shall not be less than one hundred
fifty thousand (150,000) inhabitants, as certified by the NSO; or land area which must
be contiguous with an area of at least one hundred (100) square kilometers, as
certified by LMB. The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall not apply where the
proposed city is composed of one (1) or more islands. The territorial jurisdiction of a
city sought to be created shall be properly identified by metes and bounds.

The creation of a new city shall not reduce the land area, population, and income of the original LGU
or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses
incidental to the creation shall be borne by the petitioners.

Provinces:

LGC: SEC. 461. Requisites for Creation. – (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers,


as certified by the Lands Management Bureau; or,

(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:

Provided, That the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be created
unless the following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million pesos
(P20,000,000.00) for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average annual income shall include
the income accruing to the general fund, exclusive of special funds, special accounts,
transfers, and non-recurring income; and

(2) Population or land area – Population which shall not be less than two hundred
fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be
contiguous with an area of at least two thousand (2,000) square kilometers, as
certified by LMB. The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall not apply where the
proposed province is composed of one (1) or more islands. The territorial jurisdiction
of a province sought to be created shall be properly identified by metes and bounds.

The creation of a new province shall not reduce the land area, population, and income of the original
LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All
expenses incidental to the creation shall be borne by the petitioners. (Emphasis supplied.)
It bears scrupulous notice that from the above cited provisions, with respect to the creation of
barangays, land area is not a requisite indicator of viability. However, with respect to the creation of
municipalities, component cities, and provinces, the three (3) indicators of viability and projected
capacity to provide services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or
more islands, it is exempt from the land area requirement as expressly provided in Section 442 and
Section 450 of the LGC if the local government unit to be created is a municipality or a component
city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a
province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-
IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and
municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine
archipelago, there is a greater likelihood that islands or group of islands would form part of the land
area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer
that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and
Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for
provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the
inclusion was intended to correct the congressional oversight in Section 461 of the LGC – and to
reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of
Article 9(2) of the LGC-IRR.

This interpretation finds merit when we consider the basic policy considerations underpinning the
principle of local autonomy.

Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the national government to the local government
units.

This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and in the Whereas clauses of
Administrative Order No. 270,27 which read—

WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the
autonomy of local governments;

WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective partners in the attainment of
national goals;

WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene
an Oversight Committee for the purpose of formulating and issuing the appropriate rules and
regulations necessary for the efficient and effective implementation of all the provisions of the said
Code; and

WHEREAS, the Oversight Committee, after due deliberations and consultations with all the
concerned sectors of society and consideration of the operative principles of local autonomy as
provided in the Local Government Code of 1991, has completed the formulation of the implementing
rules and regulations; x x x

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
should be liberally construed in order to achieve the desired results. The strict interpretation adopted
by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd,
awkward, and impractical. Picture an intended province that consists of several municipalities and
component cities which, in themselves, also consist of islands. The component cities and
municipalities which consist of islands are exempt from the minimum land area requirement,
pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to
comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several
islands. This would mean that Congress has opted to assign a distinctive preference to create a
province with contiguous land area over one composed of islands — and negate the greater
imperative of development of self-reliant communities, rural progress, and the delivery of basic
services to the constituency. This preferential option would prove more difficult and burdensome if
the 2,000-square-kilometer territory of a province is scattered because the islands are separated by
bodies of water, as compared to one with a contiguous land mass.

Moreover, such a very restrictive construction could trench on the equal protection clause, as it
actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution.
Hence, the land area requirement should be read together with territorial contiguity.

Another look at the transcript of the deliberations of Congress should prove enlightening:

CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian,28 with respect to his…

CHAIRMAN LINA. Okay.

HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished
Senator about the action taken by the House, on House Bill No. 7166. This was passed about two
years ago and has been pending in the Senate for consideration. This is a bill that I am not the only
one involved, including our distinguished Chairman here. But then we did want to sponsor the bill,
being the Chairman then of the Local Government.

So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the
creation of the new provinces, because of the vastness of the areas that were involved.

At any rate, this bill was passed by the House unanimously without any objection. And as I have said
a while ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel
himself was just in South Cotabato and he delivered a speech that he will support this bill, and he
says, that he will incorporate this in the Local Government Code, which I have in writing from him. I
showed you the letter that he wrote, and naturally, we in the House got hold of the Senate version. It
becomes an impossibility for the whole Philippines to create a new province, and that is quite the
concern of the respective Congressmen.
Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother
province from voting against the bill, if a province is going to be created.

So, we are talking about devolution of powers here. Why is the province not willing to create another
province, when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won’t
have one million people there, and if you look at Palawan, there will be about three or four provinces
that will comprise that island. So, the development will be hampered.

Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This
was practically about a year after 7166 was approved by the House, House Bill 7166.

On November 2, 1989, the Senator wrote me:

"Dear Congressman Chiongbian:

We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was
incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for
second reading.

Thank you and warm regards.

Very truly yours,"

That is the very context of the letter of the Senator, and we are quite surprised that the Senate has
adopted another position.

So, we would like – because this is a unanimously approved bill in the House, that’s the only bill that
is involving the present Local Government Code that we are practically considering; and this will be
a slap on the House, if we do not approve it, as approved by the lower House. This can be [an]
irritant in the approval of the Conference Committee Report. And I just want to manifest that insofar
as the creation of the province, not only in my province, but the other provinces. That the mother
province will participate in the plebiscite, they can defeat the province, let’s say, on the basis of the
result, the province cannot be created if they lose in the plebiscite, and I don’t see why, we should
put this stringent conditions to the private people of the devolution that they are seeking.

So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved
version of the House, and I will not be the one to raise up and question the Conference Committee
Report, but the rest of the House that are interested in this bill. And they have been approaching the
Speaker about this. So, the Speaker reminded me to make sure that it takes the cudgel of the House
approved version.

So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the
House, but because the mother province will participate anyhow, you vote them down; and that is
provided for in the Constitution. As a matter of fact, I have seen the amendment with regards to the
creation of the city to be urbanized, subject to the plebiscite. And why should we not allow that to
happen in the provinces! In other words, we don’t want the people who wants to create a new
province, as if they are left in the devolution of powers, when they feel that they are far away from
civilization.

Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But
the province of South Cotabato has a very unique geographical territorial conglomerations. One side
is in the other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other
municipalities are in the East and in the West. And if they have to travel from the last town in the
eastern part of the province, it is about one hundred forty kilometers to the capital town. And from
the West side, it is the same distance. And from the North side, it is about one hundred kilometers.
So that is the problem there. And besides, they have enough resources and I feel that, not because I
am interested in the province, I am after their welfare in the future. Who am I to dictate on those
people? I have no interest but then I am looking at the future development of these areas.

As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can foresee what
the creation of a new province will bring to these people. It will bring them prosperity; it will bring
them more income, and it will encourage even foreign investors. Like the PAP now, they are
concentrating in South Cotabato, especially in the City of

General Santos and the neighboring municipalities, and they are quite interested and even the AID
people are asking me, "What is holding the creation of a new province when practically you need it?"
It’s not 20 or 30 kilometers from the capital town; it’s about 140 kilometers. And imagine those
people have to travel that far and our road is not like Metropolitan Manila. That is as far as from here
to Tarlac. And there are municipalities there that are just one municipality is bigger than the province
of La Union. They have the income. Of course, they don’t have the population because that’s a part
of the land of promise and people from Luzon are migrating everyday because they feel that there
are more opportunities here.

So, by creating the new provinces, not only in my case, in the other cases, it will enhance the
development of the Philippines, not because I am interested in my province. Well, as far as I am
concerned, you know, I am in the twilight years of my life to serve and I would like to serve my
people well. No personal or political interest here. I hope the distinguished Chairman of the
Committee will appreciate the House Bill 7166, which the House has already approved because we
don’t want them to throw the Conference Committee Report after we have worked that the house Bill
has been, you know, drawn over board and not even considered by the Senate. And on top of that,
we are considering a bill that has not yet been passed. So I hope the Senator will take that into
account.

Thank you for giving me this time to explain.

CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative
history of the Senate version on this matter of creation of provinces. I am sure there was an
amendment. As I said, I’ll look into it. Maybe the House version was incorporated in toto, but maybe
during the discussion, their amendments were introduced and, therefore, Senator Pimentel could not
hold on to the original version and as a result new criteria were introduced.

But because of the manifestation that you just made, we will definitely, when we reach a book, Title
IV, on the matter of provinces, we will look at it sympathetically from your end so that the objective
that you want [to] achieve can be realized. So we will look at it with sympathy. We will review our
position on the matter, how we arrived at the Senate version and we will adopt an open mind
definitely when we come into it.

CHAIRMAN ALFELOR. Kanino ‘yan?

CHAIRMAN LINA. Book III.

CHAIRMAN ALFELOR. Title?


CHAIRMAN LINA. Title IV.

CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic
stimulation of a certain area. Like our case, because I put myself on our province, our province is
quite very big. It’s composed of four (4) congressional districts and I feel it should be five now. But
during the Batasan time, four of us talked and conversed proposing to divide the province into two.

There are areas then, when since time immemorial, very few governors ever tread on those areas.
That is, maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf.
From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors
ever tread [there] before, even today. That area now is infested with NPA. That is the area of
Congressman Andaya.

Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these
areas. With a big or a large area of a province, a certain administrator or provincial governor
definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that
an area where there is physical or geographical impossibilities, where administrators can penetrate, I
think we have to create certain provisions in the law where maybe we can treat it with special
considerations.

Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces
are concerned. It is very surprising that there are provinces here which only composed of six
municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six
municipalities. Ah, excuse me, Batanes.

CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes
province?

CHAIRMAN ALFELOR. Batanes is only six.

CHAIRMAN LINA. Six town. Siquijor?

CHAIRMAN ALFELOR. Siquijor. It is region?

CHAIRMAN LINA. Seven.

CHAIRMAN ALFELOR.L Seven. Anim.

CHAIRMAN LINA. Six also.

CHAIRMAN ALFELOR. Six also.

CHAIRMAN LINA. It seems with a minimum number of towns?

CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional
district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.

CHAIRMAN LINA. Camiguin, Camiguin.

CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63
thousand. But we do not hold it against the province because maybe that’s one stimulant where
growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard
fast on requirements of, we set a minimum for every province, palagay ko we just leave it to
legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit
it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata
mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To
devolve powers in order for the community to have its own idea how they will stimulate growth in
their respective areas.

So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a
generalization.

CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of
some geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or
will substantial aid coming from the national government to a particular area, say, to a municipality,
achieve the same purpose?

CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan
lang yun, provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.

There’s a province of Camarines Sur which have the same share with that of Camiguin and Siquijor,
but Camiguin is composed only of five municipalities; in Siquijor, it’s composed of six, but the share
of Siquijor is the same share with that of the province of Camarines Sur, having a bigger area, very
much bigger.

That is the budget in process.

CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with
sympathy because of the explanation given and we will study this very carefully.29

The matters raised during the said Bicameral Conference Committee meeting clearly show the
manifest intention of Congress to promote development in the previously underdeveloped and
uninhabited land areas by allowing them to directly share in the allocation of funds under the national
budget. It should be remembered that, under Sections 284 and 285

of the LGC, the IRA is given back to local governments, and the sharing is based on land area,
population, and local revenue.30

Elementary is the principle that, if the literal application of the law results in absurdity, impossibility,
or injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative
history of the law,31 or may consider the implementing rules and regulations and pertinent executive
issuances in the nature of executive and/or legislative construction. Pursuant to this principle, Article
9(2) of the LGC-IRR should be deemed incorporated in the basic law, the LGC.

It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of
members of both the Executive and Legislative departments, pursuant to Section 53332 of the LGC.
As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules
and regulations necessary for the efficient and effective implementation of any and all provisions of
this Code, thereby ensuring compliance with the principles of local autonomy as defined under the
Constitution. It was also mandated by the Constitution that a local government code shall be enacted
by Congress, to wit—
Section 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.
(Emphasis supplied.)

These State policies are the very reason for the enactment of the LGC, with the view to attain
decentralization and countryside development. Congress saw that the old LGC, Batas Pambansa
Bilang 337, had to be replaced with a new law, now the LGC of 1991, which is more dynamic and
cognizant of the needs of the Philippines as an archipelagic country. This accounts for the
exemption from the land area requirement of local government units composed of one or more
islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to the creation of
municipalities and cities, but inadvertently omitted from Section 461 with respect to the creation of
provinces. Hence, the void or missing detail was filled in by the Oversight Committee in the LGC-
IRR.

With three (3) members each from both the Senate and the House of Representatives, particularly
the chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the
inclusion by the Oversight Committee of the exemption from the land area requirement with respect
to the creation of provinces consisting of one (1) or more islands was intended by Congress, but
unfortunately not expressly stated in Section 461 of the LGC, and this intent was echoed through an
express provision in the LGC-IRR. To be sure, the Oversight Committee did not just arbitrarily and
whimsically insert such an exemption in Article 9(2) of the LGC-IRR. The Oversight Committee
evidently conducted due deliberation and consultations with all the concerned sectors of society and
considered the operative principles of local autonomy as provided in the LGC when the IRR was
formulated.33 Undoubtedly, this amounts not only to an executive construction, entitled to great
weight and respect from this Court,34 but to legislative construction as well, especially with the
inclusion of representatives from the four leagues of local government units as members of the
Oversight Committee.

With the formulation of the LGC-IRR, which amounted to both executive and legislative construction
of the LGC, the many details to implement the LGC had already been put in place, which Congress
understood to be impractical and not too urgent to immediately translate into direct amendments to
the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged
province, enacted R.A. No. 9355, following the exemption from the land area requirement, which,
with respect to the creation of provinces, can only be found as an express provision in the LGC-IRR.
In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood into that
exemption in Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355
creating the Island Province of Dinagat.

Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both
Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear
legislative intent to incorporate into the LGC that exemption from the land area requirement, with
respect to the creation of a province when it consists of one or more islands, as expressly provided
only in the LGC-IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of
R.A. No. 9355.

What is more, the land area, while considered as an indicator of viability of a local government unit,
is not conclusive in showing that Dinagat cannot become a province, taking into account its average
annual income ofP82,696,433.23 at the time of its creation, as certified by the Bureau of Local
Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for
the creation of a province. The delivery of basic services to its constituents has been proven
possible and sustainable. Rather than looking at the results of the plebiscite and the May 10, 2010
elections as mere fait accompli circumstances which cannot operate in favor of Dinagat’s existence
as a province, they must be seen from the perspective that Dinagat is ready and capable of
becoming a province. This Court should not be instrumental in stunting such capacity. As we have
held in League of Cities of the Philippines v. Commission on Elections35 —

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to
its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and
that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that
which is within the intent of the lawmaker is as much within the statute as if within the letter, and that
which is within the letter of the statute is not within the statute unless within the intent of the
lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would
defeat the intent of the law and its legislators.

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal


branch of government, it behooves the Court to have at once one principle in mind: the presumption
of constitutionality of statutes. This presumption finds its roots in the tri-partite system of government
and the corollary separation of powers, which enjoins the three great departments of the government
to accord a becoming courtesy for each other’s acts, and not to interfere inordinately with the
exercise by one of its official functions. Towards this end, courts ought to reject assaults against the
validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory
in context being that the law is the product of earnest studies by Congress to ensure that no
constitutional prescription or concept is infringed. Consequently, before a law duly challenged is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court.

WHEREFORE, the Court resolved to:

1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and
filed on October 29, 2010;

2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for
Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the
Resolution dated July 20, 2010;

3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12,
2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in
Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991
stating, "The land area requirement shall not apply where the proposed province is
composed of one (1) or more islands," is declared VALID. Accordingly, Republic Act No.
9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and
CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the
election of the officials thereof are declared VALID; and

4. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO MORALES


Associate Justice Associate Justice

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


Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO


Associate Justice

CERTIFICATION

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

RENATO C. CORONA
Chief Justice

Footnotes

1
Congressman Francisco T. Matugas (incumbent Congressman of the First Legislative
District of Surigao del Norte), Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr.
(incumbent Governor and Vice Governor, respectively, of the Province of Surigao del Norte),
Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos,
and Hon. Cesar M. Bagundol (incumbent Board Members of the First Provincial District of
Surigao del Norte).

2
Passed by the House of Representatives and the Senate on August 28, 2006 and August
14, 2006, respectively.

3
R.A. No. 7160, Sec. 10.

SECTION. 10. Plebiscite Requirement. – No creation, division, merger, abolition, or


substantial alteration of boundaries of local government units shall take effect unless
approved by a majority of the votes cast in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite shall be conducted by the
Commission on Elections (COMELEC) within one hundred twenty (120) days from
the date of effectivity of the law or ordinance effecting such action, unless said law or
ordinance fixes another date.

4
Rollo, pp. 124-127.

5
Id. at 143.

6
Rollo (G.R. No. 175158), pp. 3-20.

7
Per the November 28, 2006 Resolution, the Court dismissed the petition due to its defective
or insufficient verification and certification of non-forum shopping and the failure of
petitioners’ counsel to indicate an updated Integrated Bar of the Philippines official receipt. In
its February 13, 2007 Resolution, the Court dismissed the petition with finality. On April 11,
2007, an Entry of Judgment was issued. (Id. at 77A and 112.)

8
Rollo, pp. 3-43.

9
Id. at 736-765.

10
Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno
(now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio Morales, Arturo D.
Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Portugal Perez, and Jose Catral
Mendoza, concurring.

11
Dissented to by Associate Justice Antonio Eduardo B. Nachura, joined by Associate
Justices Renato C. Corona (now Chief Justice), Presbitero J. Velasco, Jr., Teresita J.
Leonardo-De Castro, Lucas P. Bersamin, and Roberto A. Abad.

12
Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno
(now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio-Morales, Arturo D.
Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., and Jose Catral Mendoza,
concurring.

13
Dissented to by Associate Justice Jose Portugal Perez, joined by Associate Justices
Renato C. Corona (now Chief Justice), Antonio Eduardo B. Nachura, Teresita J. Leonardo-
De Castro, Lucas P. Bersamin, and Roberto A. Abad.

14
Rollo, pp. 984-997.
15
Id. at 1153-1154.

16
Id. at 1155- 1158.

17
Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385;
Office of the Ombudsman v. Miedes, Sr., G.R. No. 176409, February 27, 2008, 547 SCRA
148; Pinlac v. Court of Appeals, 457 Phil. 527 (2003); Mago v. Court of Appeals, 363 Phil.
225 (1999); Lim v. Pacquing, G.R. No. 115044, January 27, 1995, 240 SCRA 649; Tahanan
Development Corporation v. Court of Appeals, 203 Phil. 652 (1982); and Director of Lands v.
Court of Appeals, 181 Phil. 432 (1979).

18
Sec. 3. Second Motion for Reconsideration. – The Court shall not entertain a second
motion for reconsideration and any exception to this rule can only be granted in the higher
interest of just by the Court en banc upon a vote of at least two-thirds of its actual
membership. There is reconsideration "in the higher interest of justice" when the assailed
decision is not only legally erroneous, but is likewise patently unjust and potentially capable
of causing unwarranted and irremediable injury or damage to the parties. A second motion
for reconsideration can only be entertained before the ruling sought to be reconsidered
becomes final by operation of law or by the Court’s declaration.

19
The Province of North Cotabato v. Republic, G.R. No. 183591, October 14, 2008, 568
SCRA 402, citing Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) and
Vicente V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).

20
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

21
Id. at 223.

22
See Tan Tiac Chiong v. Hon. Rodrigo Cosico, 434 Phil. 753 (2002); People v. Hon.
Chavez, 411 Phil. 482 (2001).

23
Id.

24
Manotok IV v. Heirs of Homer L. Barque, G.R. Nos. 162335 & 162605, December 18,
2008, 574 SCRA 468, 492.

25
Bicameral Conference Committee Meeting of the Committee on Local Government, May
22, 1991, 4th Regular Session, pp. 57-67.

26
ARTICLE 3. Declaration of Policy. – (a) It is hereby declared the policy of the Sate that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units (LGUs) shall
be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the LGUs.

27
Prescribing the Implementing Rules and Regulations of the Local Government Code of
1991.
28
Congressman Chiongbian is one of the sponsors of House Bill No. 34061, the House of
Representatives version of the proposed Local Government Code.

29
Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp.
18-28.

30
Section 284. Allotment of Internal Revenue Taxes. – Local government units shall have a
share in the national internal revenue taxes based on the collection of the third fiscal year
preceding the current fiscal year as follows:

(a) On the first year of the effectivity of this Code, thirty percent (30%);

(b) On the second year, thirty-five percent (35%); and

(c) On the third year and thereafter, forty percent (40%):

Provided, That in the event that the National Government incurs an unmanageable
public sector deficit, the President of the Philippines is hereby authorized, upon the
recommendation of the Secretary of Finance, Secretary of Interior and Local
Government, and Secretary of Budget and Management, and subject to consultation
with the presiding officers of both Houses of Congress and the presidents of the
"liga", to make the necessary adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be less than thirty percent (30%)
of the collection of national internal revenue taxes of the third fiscal year preceding
the current fiscal year: Provided, further, That in the first year of the effectivity of this
Code, the local government units shall, in addition to the thirty percent (30%) internal
revenue allotment which shall include the cost of devolved functions for essential
public services, be entitled to receive the amount equivalent to the cost of devolved
personal services.

Section 285. Allocation to Local Government Units. – The share of local government
units in the internal revenue allotment shall be allocated in the following manner:

(a) Provinces – Twenty-three percent (23%);

(b) Cities – Twenty-three percent (23%);

(c) Municipalities – Thirty-four percent (34%); and

(d) Barangays – Twenty percent (20%):

Provided, however, That the share of each province, city, and municipality shall be
determined on the basis of the following formula:

(a) Population – Fifty percent (50%);

(b) Land Area – Twenty-five percent (25%) and

(c) Equal Sharing – Twenty-five percent (25%):


Provided, further, That the share of each barangay with a population of not less than
one hundred (100) inhabitants shall not be less than Eighty thousand pesos
(P80,000.00) per annum chargeable against the twenty percent (20%) share of the
barangay from the internal revenue allotment, and the balance to be allocated on the
basis of the following formula:

(a) On the first year of the effectivity of this Code:

(1) Population – Forty percent (40%); and

(2) Equal Sharing – Sixty percent (60%)

(b) On the second year:

(1) Population – Fifty percent (50%); and

(2) Equal Sharing – Fifty percent (50%)

(c) On the third year and thereafter:

(1) Population – Sixty percent (60%); and

(2) Equal Sharing – Forty percent (40%):

Provided, finally, That the financial requirements of barangays created by local


government units after the effectivity of this Code shall be the responsibility of the
local government unit concerned.

31
Commissioner of Internal Revenue v. Solidbank Corp., 462 Phil. 96, 129-131, 416 SCRA
436 (2003); Republic v. Court of Appeals, 359 Phil. 530, 559; 299 SCRA 199 (1998).

32
Sec. 533. Formulation of Implementing Rules and Regulations.—(a) Within one (1) month
after the approval of this Code, the President shall convene the Oversight Committee as
herein provided for. The said Committee shall formulate and issue the appropriate rules and
regulations necessary for the efficient and effective implementation of any and all provisions
of this Code, thereby ensuring compliance with the principles of local autonomy as defined
under the Constitution.

(b) The Committee shall be composed of the following:

(1) The Executive Secretary, who shall be the Chairman;

(2) Three (3) members of the Senate to be appointed by the President of the
Senate, to include the Chairman of the Committee on Local Government;

(3) Three (3) members of the House of Representatives to be appointed by


the Speaker, to include the Chairman of the Committee on Local
Government;

(4) The Cabinet, represented by the following:


(i) Secretary of the Interior and Local Government;

(ii) Secretary of Finance;

(iii) Secretary of Budget and Management; and

(5) One (1) representative from each of the following;

(i) The League of Provinces;

(ii) The League of Cities;

(iii) The League of Municipalities; and

(iv) The Liga ng mga Barangay.

(c) The Committee shall submit its report and recommendation to the President
within two (2) months after its organization. If the President fails to act within thirty
(30) days from receipt thereof, the recommendation of the Oversight Committee shall
be deemed approved. Thereafter, the Committee shall supervise the transfer of such
powers and functions mandated under this Code to the local government units,
together with the corresponding personnel, properties, assets and liabilities of the
offices or agencies concerned, with the least possible disruptions to existing
programs and projects. The Committee shall likewise recommend the corresponding
appropriations necessary to effect the said transfer.

For this purpose, the services of a technical staff shall be enlisted from among the
qualified employees of Congress, the government offices, and the leagues
constituting the Committee.

(d) The funding requirements and the secretariat of the Committee shall be provided
by the Office of the Executive Secretary.

(e) The sum of Five million pesos (P5,000,000.00), which shall be charged against
the Contingent Fund, is hereby allotted to the Committee to fund the undertaking of
an information campaign on this Code. The Committee shall formulate the guidelines
governing the conduct of said campaign, and shall determine the national agencies
or offices to be involved for this purpose. (Emphasis supplied.)

33
As found in the Whereas clauses of Administrative Order No. 270 prescribing the
Implementing Rules and Regulations of the Local Government Code of 1991, viz.:

WHEREAS, the Oversight Committee, after due deliberations and consultations with
all the concerned sectors of society and consideration of the operative principles of
local autonomy as provided in the Local Government Code of 1991, has completed
the formulation of the implementing rules and regulations. (Emphasis supplied.)

34
Galarosa v. Valencia, G.R. No. 109455, November 11, 1993, 227 SCRA 728.

35
G.R. Nos. 176951, 177499, and 178056, December 21, 2009, 608 SCRA 636, 644-645.
The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

I join Justice Diosdado M. Peralta and Justice Arturo D. Brion in their dissents. I file this separate
dissenting opinion because the majority’s ruling today, legitimizing the creation of a province in
blatant violation of the Constitution and the Local Government Code, opens the floodgates to the
proliferation of pygmy provinces and legislative districts, mangling sacred and fundamental principles
governing our democratic way of life and exacerbating the scourge of local dynastic politics.

First. The Dinagat Islands province simply does not meet the criteria for the creation of a
province. To implement the Constitution and for reasons of political practicality and economic
viability, Section 461 of the Local Government Code bars the creation of provinces unless two of
three minimum requirements are met. Section 461 of the Code provides:

SEC. 461. Requisites for Creation. - (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as


certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:

Provided, that the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis
supplied)

Section 461 requires a province to meet the minimum income requirement and either the minimum
land area or minimum population requirement. In short, two of the three minimum requirements
must be satisfied, with the minimum income requirement one of the two. The Dinagat Islands
province, whose income at the time of its creation in 2006 was P82,696,433.22,
satisfies only the minimum income requirement. The Dinagat Islands province does not meet
either the minimum land area requirement or the minimum population
requirement. Indisputably, Dinagat Islands cannot qualify as a province under Section 461 of the
Local Government Code, the law that governs the creation of provinces.
Based on the 2000 census, Dinagat Islands’ population stood only at 106,951, less than half of the
statutory minimum of 250,000. In the census conducted seven years later in 2007, one year after its
creation, its population grew by only 13,862, reaching 120,813, still less than half of the minimum
population required. The province does not fare any better in land area, with its main island, one
sub-island and around 47 islets covering only 802.12 square kilometers, less than half of the 2,000
square kilometers minimum land area required.

The Local Government Code contains no exception to the income and population or land area
requirements in creating provinces. What the Code relaxed was the contiguity rule for provinces
consisting of "two (2) or more islands or is separated by a chartered city or cities which do not
contribute to the income of the province." The minimum land area of 2,000 square kilometers in the
Code for the creation of a province was never changed, andno exception was ever created by
law. Hence, the exception created in the implementing rule1 of the Local Government Code,
exempting provinces "composed of one (1) or more islands" from the minimum land area
requirement, is void for being ultra vires, granting a statutory exception that the Local Government
Code clearly withheld. The implementing rule, being a mere administrative regulation to implement
the Local Government Code, cannot amend the Code but must conform to the Code. Only
Congress, and not any other body, is constitutionally empowered to create, through amendatory
legislation, exceptions to the land area requirement in Section 461 of the Code.

The majority argues that since the exception of island provinces from the minimum land area
requirement was inserted in the implementing rules by the congressional Oversight Committee, the
Court should extend great weight to this "legislative construction" of the Code. This is gross
error. First, in Macalintal v. Comelec,2 we ruled that a congressional oversight committee has no
power to approve or disapprove the implementing rules of laws because the implementation of laws
is purely an executive function. The intrusion of the congressional Oversight Committee in the
drafting of implementing rules is a violation of the separation of powers enshrined in the Constitution.
This Court cannot allow such intrusion without violating the Constitution. Second, Congress has no
power to construe the law. Only the courts are vested with the power to construe the law. Congress
may provide in the law itself a definition of terms but it cannot define or construe the law through its
Oversight Committee after it has enacted the law because such power belongs to the courts.

It is not difficult to see why Congress allowed an exception to the land area requirement in the
creation of municipalities3 and cities4 but withheld it for provinces. The province, as the largest
political and corporate subdivision of local governance in this country, serves as the geographic
base from which municipalities, cities and even another province will be carved, fostering local
development. Today’s majority ruling, allowing the creation of an island province irrespective of
population and land area so long as it has P20 million annual income, wipes away the territorial and
population tiering among provinces, cities and municipalities the Local Government Code has
carefully structured, reducing provinces to the level of a rich municipality,5 unable to host otherwise
qualified new smaller local government units for sheer lack of space.

Despite the majority’s ingenious resort to "legislative construction" in the implementing rules to
exempt Dinagat Islands from the minimum land area requirement, the majority cannot escape one
glaring fact: Dinagat Islands province satisfies only the minimum income requirement under Section
461 of the Local Government Code. Even assuming that the minimum land area requirement
does not apply to island provinces, an assumption that is devoid of any legal basis, Dinagat
Islands still fail to meet the minimum population requirement.Under Section 461 of the Code,
two of the three minimum requirements must be satisfied in the creation of a province, with the
income requirement being one of the two minimum requirements. The majority’s ruling today creates
the Dinagat Islands province despite the indisputable fact that it satisfies only one of the two
necessary requirements prescribed in Section 461. The majority’s ruling clearly violates Section 461
of the Code, no question about it.
Second. It is mandatory that a province must have a population of at least 250,000. The 1987
Constitution mandates that "each province[,] shall have at least one representative."6 In Sema v.
Commission on Elections,7 we categorically ruled that "the power to create a province or city
inherently involves the power to create a legislative district." Thus, when Congress creates a
province it necessarily creates at the same time a legislative district. The province must comply with
the minimum population of 250,000 because the Constitution mandates that 250,000 shall be the
minimum population for the creation of legislative districts.8

The Constitution provides for proportional representation in the House of Representatives when
it declares that "legislative districts [shall be] apportioned among provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective inhabitants x x x ."
This means that for every given number of inhabitants, "provinces, cities and the Metropolitan
Manila area" will be entitled to one representative. In consonance with this constitutional rule on
proportional representation and in compliance with the Equal Protection Clause, the minimum
population for the creation of legislative districts in provinces and cities must be the same. Since
the Constitution expressly provides that the minimum population of legislative districts in cities shall
be 250,000,9 then it necessarily follows that the minimum population of legislative districts in
provinces shall also be 250,000. Otherwise, there will be a blatant violation of two fundamental
principles of our democratic system – the constitutional requirement of proportional representation in
the House of Representatives for "provinces, cities and the Metropolitan Manila area" and the "one
person, one vote" rule rooted in the Equal Protection Clause.

Moreover, to treat land area as an alternative to the minimum population requirement (based on the
conjunctive "either" in Section 461) destroys the supremacy of the Constitution, making the statutory
text prevail over the clear constitutional language mandating a minimum population through the
requirement of proportional representation in the apportionment of all legislative districts. In short, in
the creation of a province neither Congress nor the Executive can replace the minimum
population requirement with a land area requirement because the creation of a province
necessarily creates at the same time a legislative district, which under the Constitution must
have a minimum population of 250,000.

Because of the majority’s ruling today, the House of Representatives will now count among its
members a representative of a "premium" district consisting, as of the 2007 census, of only 120,813
constituents, well below the minimum population of 250,000 his peers from the other regular districts
represent. This malapportionment tolerates, on the one hand, vote undervaluation in overpopulated
districts, and, on the other hand, vote overvaluation in underpopulated ones, in clear breach of the
"one person, one vote" rule rooted in the Equal Protection Clause. To illustrate, the 120,813
inhabitants of Dinagat Islands province are entitled to send one representative to the House of
Representatives. In contrast, a legislative district in Metro Manila needs 250,000 inhabitants to send
one representative to the House of Representatives. Thus, one vote in Dinagat Islands has the
weight of more than two votes in Metro Manila for the purpose of representation in the House
of Representatives. This is not what our "one person, one vote" representative democracy is all
about.

What special and compelling circumstances have the majority found that entitle the inhabitants of
Dinagat Islands to such a privileged position? Do the inhabitants of Dinagat Islands have more than
twice the IQ of inhabitants of Metro Manila? Do the inhabitants of Dinagat Islands pay more than
twice the amount of taxes that inhabitants of Metro Manila pay? Are the inhabitants of Dinagat
Islands the chosen people of God to lead this country to greatness? Have the Filipino people, in a
plebiscite, agreed to confer on the inhabitants of Dinagat Islands such privileged position, which is
the only constitutionally justifiable way to grant such privileged status? Indeed, the gross
malapportionment this case presents is just as constitutionally damaging as that in Aquino v.
Commission on Elections10 where the population of the reapportioned five legislative districts in
Camarines Sur, based on relevant census, fluctuated from a high of 439,043 (Third District) to a low
of 176,383 (First District).

Aquino v. Commission on Elections, and now this Dinagat Islands province case, will mangle beyond
recognition the bedrock constitutional principles of proportional representation in the House of
Representatives, as well as the egalitarian rule of "one person, one vote" universally honored in all
modern civilized societies and rooted in the Equal Protection Clause. With Aquino v. Commission on
Elections, a legislative district in provinces can be created with no minimum population requirement.
Thus, a municipality with a population of only 25,000 can have a legislative district. With this Dinagat
Islands province case, a province, and necessarily a legislative district, can be created with a
population of only 120,000 or even less. In fact, under both Aquino v. Commission on
Electionsand this Dinagat Islands province case, there is no minimum population
requirement whatsoever in the creation of legislative districts in provinces, and thus even a
barangay with a population of 1,000 can be a legislative district. In sharp contrast, a legislative
district in cities can only be created with a minimum population of 250,000 as expressly required in
the Constitution. To repeat, the majority has thrown into the dustbin of history the bedrock
democratic principles of proportional representation in the House of Representatives and the "one
person, one vote" rule rooted in the Equal Protection Clause − both of which are enshrined in our
Constitution and in our democratic way of life. Where is the majority of this Court bringing our
representative democracy?

Third. Quasi-malapportionment laws like RA 9355 are double-edged knives thrust at the heart of the
anti-dynastic vision of the 1987 Constitution – it fosters entrenchment of political dynasties and fuels
feudalistic practices by assuring political dynasties easy access to public funds.

Members of Congress are entitled to an equal share of pork barrel funds regardless of the size of
their constituencies. Thus, each seat in the House of Representatives translates to a potent platform
for congressmen to cultivate patronage by doling out development, livelihood and support projects
using pork barrel funds allocated in annual budgets. For each new province created – entailing at the
same time the creation of a legislative district – a pipeline to a huge pool of resources is opened,
with the Congressman enjoying wide discretion on how and where he will dispense such legislative
largesse.

Under the majority’s ruling, not only land area but also population is immaterial in creating island
provinces. This is an open invitation to ruling political clans strategically situated in this country’s
thousands of islands to sponsor the creation of more underpopulated provinces within their political
bailiwicks,11 enabling them to capture more pork barrel funds, thus tightening their grip on the levers
of power. This inevitably fuels the feudal practices plaguing Philippine local politics by fortifying
patron (congressman) — ward (constituents) relations upon which dynastic politics thrive. All this at
the expense of taxpayers, mostly residing in city legislative districts with minimum populations of
250,000, who surely would not want their taxes to be spent as pork barrel funds of political dynasties
in underpopulated legislative districts in island provinces.

The 1987 Constitution is not neutral on the scourge of dynastic politics, a phenomenon that
concentrates political power and public resources within the control of few families whose members
alternately hold elective offices, deftly skirting term limits. Its exclusionary effect on access to public
service led the framers of the 1987 Constitution to mandate that the State "guarantee equal access
to opportunities for public service" and that Congress "prohibit political dynasties x x x."12 To the
Filipino people’s misfortune, Congress’ non-implementation of this constitutional directive is now
aggravated by this Court’s wantonly loose translation of the Constitution’s apportionment standard of
proportional representation.13 Thus, instead of ensuring compliance with the Constitution’s mandate
prohibiting political dynasties, this Court has turned complicit to local politicians’ predilection for
dynastic entrenchment.

Fourth. Far from being dispensable components in the creation of local government units, population
and land area – not income – are the pivotal factors in funding local government units. Under the
Local Government Code, these components determine 75% of the share from the national taxes
(Internal Revenue Allotment or IRA) each local government unit receives, the lifeblood of their
operations, based on the following formula:

1. Population – Fifty percent (50%)

2. Land Area – Twenty-five percent (25%)

3. Equal sharing – Twenty-five percent (25%).14

xxxx

Thus, population, with a weight of 50%, ranks first in importance in determining the financial
entitlement of local government units, followed by land area with a weight of 25%.

By treating Dinagat Islands’ land area of 802.12 square kilometers as compliant with the 2,000
square kilometers minimum under Section 461, the majority effectively included in their land
area computation the enclosed marine area or waters of Dinagat Islands. This disposition not
only reverses, without cause, decades’ old jurisprudence,15 it also wreaks havoc on the national
government’s allocation of the internal revenue allotment to existing island provinces which would be
justified in invoking today’s ruling to clamor for increased revenue shares due to increased "land
area." In short, other island provinces, like Romblon, Marinduque, Sulu, Tawi-Tawi and Palawan,
can now claim their enclosed marine areas as part of their "land area" in computing their share of the
IRA.16

On the part of landlocked provinces hosting large bodies of water, like Rizal, Laguna, Batangas,
Cavite and Lanao del Sur, the situation is reversed. Finding themselves holding, but not surrounded
by, water, the submerged territory, no matter how large, is excluded from the computation of their
land area, thus proportionately lowering their share in the revenue allotment compared to their island
counterparts.

Thus, in its zeal to legalize the creation of an obviously disqualified local government unit, the
majority unwittingly creates classes of elite and disadvantaged provinces, using the most arbitrary
factor of geographic accident as basis for classification. Even under the most benign equal
protection analysis, this does not pass constitutional muster.

Fifth. The Constitution and the Local Government Code are normative guides for courts to
reasonably interpret and give expression to the will of the Filipino people as encoded in their
provisions. Members of this Court go beyond the bounds of their sworn duties when they second
guess the intent of the Constitution’s framers and the people’s elected representatives, pretending to
act as if they themselves have been accorded electoral mandate to amend statutes as they see fit.
No amount of rhetoric singing paeans to the virtues of promoting local autonomy can hide the blatant
judicial legislation the majority has succeeded in doing here today, to the detriment of the
Constitution’s requirements of proportional representation in the House of Representatives, equal
protection under the law and the prohibition against political dynasties, not to mention the blatant
violation of Section 461 of the Local Government Code.
Accordingly, I vote to DENY the Motion to Recall Entry of Judgment, the Motion for Leave to
Intervene and to File and Admit Intervenors’ Motion for Reconsideration of the Resolution dated 20
July 2010, and the Motion for Reconsideration of the Resolution dated 12 May 2010 filed by the
intervenors.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1
Article 9, paragraph 2 ("[T]he land area requirement shall not apply where the proposed
province is composed of one or more islands. x x x x")

2
G.R. No. 157013, 10 July 2003.

3
Section 442 (b) ("The territorial jurisdiction of a newly-created municipality shall be properly
identified by metes and bounds. The requirement on land area shall not apply where the
municipality proposed to be created is composed of one (1) or more islands. x x x x")
(emphasis supplied).

4
Section 450 (b) ("The territorial jurisdiction of a newly-created city shall be properly identified
by metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. x x x x") (emphasis
supplied).

5
Which, under Section 442, must have minimum income, population and land area of P2.5
million (based on 1991 prices), 25,000 and 50 square kilometers (contiguous), respectively.

6
Section 5(3), Article VI of the 1987 Constitution 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)

7
G.R. Nos. 177597 & 178628, 16 July 2008.

8
Id.

9
Id.

10
G.R. No. 189793, 617 SCRA 623 (2010).

11
Much like in the creation of legislative districts, the creation of local government units is
done at the behest of legislators representing the relevant locality.

12
Section 26, Article II (emphasis supplied).
13
Paradigmatically shown in Aquino v. Commission on Elections, G.R. No. 189793, 617
SCRA 623 (2010).

14
Section 285.

15
In Tan v. Commission on Elections (No. L-73155, 11 July 1986, 142 SCRA 727), we
rejected as baseless the claim that "territory" for purposes of the creation of a province,
includes submerged land: "The use of the word territory in this particular provision of the
Local Government Code and in the very last sentence thereof, clearly reflects that "territory"
as therein used, has reference only to the mass of land area and excludes the waters
over which the political unit exercises control." (Id. at 749; emphasis supplied).

16
Others island provinces would be Cebu, Bohol, Masbate, Catanduanes, Batanes, Basilan,
Siquijor, and Camiguin.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

BRION, J.:

I join the Dissents of Justices Antonio T. Carpio and Diosdado M. Peralta on the strict merits of the
case – on why, based on the merits, Republic Act No. 9355 (RA 9355), otherwise known as An Act
Creating the Province of Dinagat Islands, should be declared unconstitutional.

Additionally, I submit this Dissenting Opinion to express my objections in the strongest terms against
the transgressions the Court committed in ruling on this case. The result, which is obvious to those
who have been following the developments in this case and current Supreme Court rulings, is
another flip-flop, made worse by the violations of the Court’s own Internal Rules.1 This is not, of
course, the Court’s first flip-flop in recent memory; we did a couple of remarkable somersaults in our
rulings in the case of League of Cities of the Philippines, et al. v. Comelec.2 This Dissent is written in
the hope that the Court’s violation of its own rules in this case will be the last, and that the Court will
re-think its disposition of this case.

The Court rendered its Decision in this case on February 10, 2010, declaring RA 9355
unconstitutional. The Office of the Solicitor General (OSG), in behalf of the respondents, and
respondent Governor Geraldine Ecleo-Villaroman filed their separate Motions for Reconsideration.
These were their first motions for reconsideration.

On May 12, 2010, the Court denied these motions for lack of merit.

On May 26 and 28, 2010, respondent Governor Ecleo-Villaroman and the OSG respectively filed
their 2nd Motions for Reconsideration. The Court simply noted these motions without action as they
are prohibited pleadings under Section 2, Rule 52 of the Rules of Court. This procedural rule states:

Sec. 2. Second Motion for Reconsideration. – No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained.
The Court’s Decision of February 10, 2010 became final and executory, and Entry of Judgment was
made by the Clerk of Court on May 18, 2010. At that point, the Decision of the Court should have
been beyond recall.

On June 18, 2010 (or a full month after entry of judgment), new parties, namely – Congressman
Francisco T. Matugas, Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr., Hon. Vicente G.
Castrence, Hon. Mamerto D. Galamida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol,
filed a Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration
of the Resolution dated May 12, 2010. They prayed that they be allowed to intervene in the case
since they were the newly elected officials of Surigao del Norte in the May 10, 2010 elections, who
were in danger of losing their positions once the Court's February 10, 2010 decision, declaring R.A.
No. 9355 unconstitutional, attained finality. Effectively, they took up the cause of the original
respondent Province of Surigao del Norte then represented by former Governor Robert Ace Barbers.

The Court denied the motion in its Resolution of July 20, 2010, pursuant to Section 2, Rule 19 of the
Rules of Court which allows a motion for intervention only before the rendition of judgment by the
trial court. Applying this rule to an action originally filed with the Court, we ruled that a motion for
intervention could only be filed before, and not after, the final judgment in the case.

Respondent Governor Ecleo-Villaroman filed, on October 22, 2010, an Urgent Omnibus Motion (To
Resolve Motion for Leave of Court to Admit 2nd Motion for Reconsideration and, to Set Aside Entry
of Judgment). Thus, despite the Entry of Judgment, she sought the Court’s ruling on her 2nd Motion
for Reconsideration that had simply been Noted Without Action by the Court for being a prohibited
pleading. The ploy to reopen the case and escape from the consequences of the final judgment was
apparent from the move to set aside the Entry of Judgment. Effectively, she was moving for the third
time to secure the review of the February 10, 2010 Decision that had been declared final, and to re-
submit the case for another deliberation on the merits.

Side by side with the original respondent, the would-be intervenors - despite the lack of
personality to act on the case - filed on October 29, 2010 an Urgent Motion to Recall Entry of
Judgment. Of course, this move was duly orchestrated with the respondents whose own motions
were filed a week earlier. This was a motion the would-be intervenors had no personality to file
since their proposed intervention, at that point, stood denied.

The Court en banc deliberated on the case and by a vote of 9 in favor and 6 against, decided to lift
the entry of judgment and allow the intervention of the new parties. By the same vote, it voted to
completely reverse the Decision of February 10, 2010 and declare RA 9355, entitled An Act Creating
the Province of Dinagat Islands, constitutional.

In acting as it did, the Court did not hesitate, by a 9-6 vote, to disregard existing rules that the Court
itself created.

After this vote, the ponente modified the majority resolution in reaction to the original version of this
Dissent. This time, the majority Resolution claimed that it was acting only on the would-be
intervenors' Motion to Lift Entry of Judgment, not on the original respondents' motion to set aside
judgment. The ploy apparently was to avoid the Dissent's position that the Court acted on a
prohibited 2nd motion for reconsideration without the required vote.

The Court, for reasons of its own, has chosen to live with the public fiction that 2nd motions for
reconsideration are prohibited pleadings pursuant to Section 2, Rule 52 of the Rules of Court, cited
and quoted above. In actual practice, exceptions to this Rule are allowed and what governs is
Section 3, Rule 15 of the Internal Rules of the Supreme Court which provides:
Sec. 3. Second Motion for Reconsideration. – The Court shall not entertain a second motion for
reconsideration and any exception to this rule can only be granted in the higher interest of justice by
the Court en banc upon a vote of at least two-thirds of its actual membership. There is
reconsideration "in the higher interest of justice" when the assailed decision is not only legally
erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and
irremediable injury or damage to the parties. A second motion for reconsideration can only be
entertained before the ruling sought to be reconsidered becomes final by operation of law or by the
Court’s declaration. [Emphases supplied.]

In the present case, the Court simply noted without action respondent Governor Ecleo-Villaroman’s
and the OSG’s 2nd motions for reconsideration because they are prohibited pleadings. The Court
thereafter declared its judgment final, and entry of judgment followed. Thus, when Governor Ecleo-
Villaroman sought to lift the entry of judgment, her motion – which sought to reopen the case for
another review – was effectively a third motion for reconsideration that should have been governed
by Section 3, Rule 15 of the Internal Rules. With the modified position that the Court was acting
on the movants-intervenors' motion to lift entry of judgment, the majority sought to avoid the
restrictive rule on 2nd motions for reconsideration.

How the Court acted on the respondents’ and would-be intervenors' motions is interesting.

a. Violation of the Rule on Reconsideration. By a 9-6 vote, the Court declared the entry of
judgment lifted. In so doing, it completely disregarded its own rule that any 2nd motion for
reconsideration can only be entertained through a vote of 2/3 of the actual membership, or of
10 members, of the Court. It likewise disregarded the rule that a second motion for
reconsideration can only be entertained before the ruling sought to be reconsidered
becomes final by operation of law or by the Court’s declaration. It conveniently forgot, too,
when it subsequently claimed that the motion it was considering was not by respondent
Governor Ecleo but by the would-be intervenors, that what an original party could no longer
do with respect to a final decision, would-be intervenors – practically representing the same
interests and who had not even been recognized by this Court – cannot also do; otherwise,
what is directly prohibited is allowed through indirect means. Unbelievably, among the
majority's supporting arguments to support their violation, was that (1) a motion to lift entry of
final judgment is not a motion for reconsideration of the decision sought to be declared non-
final; and that (2) no exact provision of the Internal Rules covers the lifting of an entered final
judgment.

b. Violation of the Rule on Finality of Judgments. Worse than the above transgression, the
Court turned a blind eye to the finality of the judgment it had reached in the case.

The judgment in a case becomes final by operation of law (after the lapse of fifteen [15] days from
the parties’ receipt of the judgment) or upon the Court’s declaration of the judgment’s finality. Entry
of Judgment by the Clerk of Court follows the finality of a judgment, i.e., if no motion for
reconsideration is filed with the Court within fifteen (15) days from the parties’ receipt of the
judgment.

As mentioned above, no second motion for reconsideration can be entertained once a judgment has
become final. In this case, the Court disregarded its own rules and entertained a motion to lift the
entry of judgment and to reopen the case. It was not an ordinary violation as the judgment lifted was
already final. The respondent Governor's motion to lift entry of judgment was effectively a third
motion for reconsideration (as its objective is to open the final decision for another consideration)
and its consequences need no elaborate argument to be understood. For the would-be intervenors,
it was a matter of putting the cart before the horse – a move to lift the entry of judgment even before
the would-be intervenors had their personality recognized by the Court.

The principle of immutability of a final judgment stands as one of the pillars supporting a strong,
credible and effective court. To quote what this Court has repeatedly stated on this principle:

"It is a hornbook rule that once a judgment has become final and executory, it may no longer be
modified in any respect, even if the modification is meant to correct 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, as what remains to be done is the purely ministerial enforcement
or execution of the judgment.

The doctrine of finality of judgment is grounded on fundamental considerations of public policy and
sound practice that at the risk of occasional errors, the judgment of adjudicating bodies must
become final and executory on some definite date fixed by law. [x x x ], the Supreme Court reiterated
that the doctrine of immutability of judgment is adhered to by necessity notwithstanding occasional
errors that may result thereby, since litigations must somehow come to an end for otherwise, it would
"be even more intolerable than the wrong and injustice it is designed to protect."3 [Emphases
supplied.]

This same principle, incidentally, is what we teach students in law schools as a basic
bedrock principle in the administration of justice. This is the same principle, too, that is often
asked in the bar examinations. Unfortunately, this is the same principle that the Court violated,
through a 9-6 vote, when it decided to lift its Entry of Judgment and to entertain the reopening of the
final judgment in the case for renewed consideration. This, indeed, is a most unusual move. Did the
Majority truly fail to appreciate that the lifting of the entry of judgment is no different in effect from
entertaining a motion for reconsideration, and can be made, if at all, by the actual parties, not by
would-be intervenors? If a 2nd motion for reconsideration is prohibited and requires a 2/3 vote, can a
vote that removes the character of finality from a judgment be any less?

c. Violation of the Rule on Intervention. The Court disregarded as well the rule on interventions.4 The
motion for intervention was initially denied since the Court’s decision was already final, and
intervention could no longer be allowed. To go around this rule, the would-be intervenors, without
first successfully securing leave to intervene, instead filed its own motion to lift entry of judgment –
the same 2nd motion from the original respondents that the Court previously simply noted without
action. The Court granted the motion to lift judgment by a 9-6 vote, under the fiction that it was an
intervening party, not the barred original respondents, who had asked for it.

To complete this blow-by-blow account, the respondents’ legal tactician used the ploy of first
reopening the case (initially through the original respondents, and subsequently solely through the
would-be intervenors), and thereafter moved to allow intervention since the original respondents had
by then exhausted their arguments for the constitutionality of RA 9355. On two previous attempts,
the original respondents had failed. To get around the insurmountable block posed by the rule on
2nd motions for reconsideration, they fell back on their modified Resolution with the position that
another party – the would-be intervenors – wanted to lift the entry of judgment. Once the entry of
judgment was lifted and intervention was allowed, it was an easy step to reopen the arguments, add
to what the original respondents presented, and submit the case for a ruling on the merits. The same
magic numbers of course prevailed all throughout: 9 to 6.

In this manner, the original and final ruling of the Court, in what is commonly known as the "Dinagat
case" was reversed. Unlike the case of Lazarus who rose from the dead through a miracle, Dinagat
resurrected because the Court disregarded its own rules and established jurisprudential principles.
Of course, it can similarly be called a miracle as no reversal could have taken place if just one of the
series of transgressions pointed out did not take place. How such resurrection can happen in the
Supreme Court is a continuing source of wonder!

ARTURO D. BRION
Associate Justice

Footnotes

1
A.M. No. 10-4-20-SC, The Internal Rules of the Supreme Court, effective May 22, 2010.

2
G.R. Nos. 176951, 177499 & 178056, February 15, 2011.

3
Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, citing Coca-Cola Bottlers
Philippines, Inc., Sales Force Union-PTGWO-BALAIS v. Coca-Cola Bottlers, Philippines,
Inc., G.R. No. 155651, July 28, 2005, 464 SCRA 507, 513-514; Apo Fruits Corp. v. CA, G.R.
No. 164195, December 4, 2009, citing Siy v. National Labor Relations Commission, G.R. No.
158971, August 25, 2005, 468 SCRA 154, 161-162, Kline v. Murray, 257 P. 465, 79 Mont.
530, Flores v. Court of Appeals, G.R. Nos. 97556 & 101152, July 29, 1996,Land Bank of the
Philippines v. Arceo, G.R. No. 158270, July 21, 2008, 559 SCRA 85, Temic Semiconductors,
Inc. Employees Union (TSIEU)-FFW v. Federation of Free Workers (FFW), G.R. No. 160993,
May 20, 2008, 554 SCRA 122, 134; Session Delights Ice and Cream Fast Foods v. CA, G.R.
No. 172149, February 8, 2010, citing Equitable Bank Corp. v. Sadac, G.R. No. 164772, June
8, 2006, 490 SCRA 380, 417; and Navarro v. Metropolitan Bank and Trust Company, G.R.
No. 165697, August 4, 2009, citing Yau v. Silverio, Sr., G.R. No. 158848, February 4, 2008,
543 SCRA 520, Social Security System v. Isip, G.R. No. 165417, April 4, 2007, 520 SCRA
310, Lim v. Jabalde, G.R. No. 36786, April 17, 1989, 172 SCRA 211 (1983).

4
Section 2, Rule 19 of the 1997 Rules of Civil Procedure reads: Time to intervene. – The
motion to intervene may be filed at any time before rendition of judgment by the trial court. A
copy of the pleading-in-intervention shall be attached to the motion and served on the
original parties.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

PERALTA, J.:

With due respect to the ponente, I register my dissent.

On February 10, 2010, the Court rendered a Decision in the instant case, the dispositive portion of
which reads:
WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as An Act
Creating the Province of Dinagat Islands, is hereby declared unconstitutional. The proclamation of
the Province of Dinagat Islands and the election of the officials thereof are declared NULL and
VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local
Government Code of 1991 stating, "The land area requirement shall not apply where the proposed
province is composed of one (1) or more islands," is declared NULL and VOID.

The Office of the Solicitor General (OSG) filed a motion for reconsideration in behalf of public
respondents, and respondent Governor Geraldine Ecleo-Villaroman, representing the New Province
of Dinagat Islands, also filed a separate motion for reconsideration of the Decision dated February
10, 2010.

On May 12, 2010, the Court issued a Resolution denying the motions for reconsideration of the OSG
and respondent Governor Geraldine Ecleo- Villaroman, representing the New Province of Dinagat
Islands, for lack of merit. A copy of the Resolution dated May 12, 2010 was received by the OSG on
May 13, 2010, while respondent Governor Geraldine Ecleo-Villaroman, representing the New
Province of Dinagat Islands, received a copy of the said Resolution on May 14, 2010.

The Decision dated February 10, 2010 became final and executory on May 18, 2010, as evidenced
by the Entry of Judgment1 issued by the Clerk of Court.

On May 26, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine
Ecleo-Villaroman, filed a Motion for Leave to Admit Motion for Reconsideration (of the Resolution
dated May 12, 2010) and the said Motion for Reconsideration, while on May 28, 2010, the OSG filed
a Motion for Leave to File the Attached 2nd Motion for Reconsideration (of the Resolution dated May
12, 2010) and the aforesaid Motion for Reconsideration. On June 29, 2010, the Court noted without
action the foregoing motions of respondents, as the said pleadings were considered second motions
for reconsideration of the Decision, which shall not be entertained by the Court, in accordance with
Section 2, Rule 52 of the Rules of Court, thus:

SEC. 2. Second motion for reconsideration. — No second motion for reconsideration of a judgment
or final resolution by the same party shall be entertained.

On June 18, 2010, movants-intervenors Congressman Francisco T. Matugas, Hon. Sol T. Matugas,
Hon. Arturo Carlos A. Egay, Jr., Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida,
Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol filed a Motion for Leave to Intervene and to
File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010.

Movants-intervenors claimed that they have legal interest in this case as they are the duly elected
officials2 of Surigao del Norte in the May 10, 2010 elections, and their positions will be affected by
the nullification of the election results in the event that the Resolution dated May 12, 2010 in this
case is not reversed and set aside.

On March 9, 2010, the Commission on Elections issued Resolution No. 8790,3 the pertinent portion
of which reads:

xxxx

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision
of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as
it hereby RESOLVES, to declare that:
a. If the Decision is reversed, there will be no problem since the current system configuration
is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and
the Province of Surigao del Norte remain as two separate provinces;

b. If the Decision becomes final and executory before the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District, Surigao del
Norte.

xxxx

c. If the Decision becomes final and executory after the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District of Surigao del
Norte.

The result of the election will have to be nullified for the same reasons given in item "b" above. A
special election for Governor, Vice Governor, Member, House of Representatives, First Legislative
District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del
Norte (with Dinagat Islands) will have to be conducted.

Since movants-intervenors’ elective positions would be adversely affected if the Resolution dated
May 12, 2010 would not be reversed, they prayed that they be allowed to intervene in this case and
to file their Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010, and that
their motion for reconsideration be admitted by the Court.

In a Resolution dated July 20, 2010, the Court denied the Motion for Leave to Intervene and to File
and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The
Court held that, fundamentally, the allowance or disallowance of a motion to intervene is addressed
to the sound discretion of the court.4 Under Section 2, Rule 19 of the Rules of Court, a motion to
intervene may be filed at any time before rendition of judgment by the trial court. The Court ruled that
since this case originated from an original action filed before this Court, the appropriate time to file
the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon.5

It should be noted that this case was decided on February 10, 2010, and the motions for
reconsideration of the Decision were denied in the Resolution dated May 12, 2010. The Decision
dated February 10, 2010 became final and executory on May 18, 2010. Movants-intervenors’ Motion
for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the
Resolution dated May 12, 2010 was filed only on June 18, 2010, clearly after the Decision dated
February 10, 2010 had became final and executory; hence, the said motion was correctly denied.

The ponente submits that the Court should grant movants-intervenors’ motion for reconsideration of
the July 20, 2010 Resolution, in full agreement with their position that their interest in this case arose
only after they were elected to their respective positions during the May 10, 2010 elections.

As stated by the ponente, in their motion for reconsideration of the May 12, 2010 Resolution,
movants-intervenors raised three main arguments: (1) that the passage of R.A. No. 9355 operates
as an act of Congress amending Section 461 of R.A. No. 7160 (the Local Government Code of
1991); (2) that the exemption from territorial contiguity, when the intended province consists of two
or more islands, includes the exemption from the application of the minimum land area requirement;
and (3) that the Operative Fact Doctrine is applicable in the instant case.

On the merits of the motion for intervention, the ponente urges the Court to take a hard and intent
look at the first and second arguments raised by movants-intervenors.
Movants-intervenors contended that R.A. No. 9355 is equivalent to the passage of an amendatory
law to the Local Government Code, as

instructed in the case of League of Cities of the Phils., et al. v. COMELEC, et al.:6

Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated
set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of
viability. These criteria need not be embodied in the local government code, albeit this code is the
ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after
making a codification, enact an amendatory law, adding to the existing layers of indicators earlier
codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009
upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of
the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the
cityhood laws specifically exempting a particular political subdivision from the criteria earlier
mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified
indicators. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)

Defining legislative power, movants-intervenors cited Yakazi Torres Manufacturing, Inc. v. Court of
Appeals,7 thus:

The legislative power has been described generally as the power to make, alter, and repeal
laws. The authority to amend, change, or modify a law is thus part of such legislative power. It is the
peculiar province of the legislature to prescribe general rules for the government of society.
(Emphasis and [u]nderscoring supplied [by movants-intervenors].)

In view of the foregoing, movants-intervenors argued that the Local Government Code is susceptible
to all legislative processes, including amendments, repeals or modifications. They asserted that
there is no impediment for another statute, including R.A. No. 9355, to amend or modify the Local
Government Code as regards the criteria established for the creation of a province. They noted that
R.A. No 9355 relied on Article 9 (paragraph 2) of the Rules and Regulations Implementing the Local
Government Code of 1991, particularly the provision that "[t]he land area requirement shall not apply
where the proposed province is composed of one (1) or more islands." Movants-intervenors asserted
that the said provision should be deemed incorporated in R.A. No. 9355; hence, they purported that
the land area requirement in the Local Government Code was modified by R.A. No. 9355. They
contended that "R.A. No. 9355, with the incorporated Article 9 (2) of the IRR of the Local
Government Code, became part of the Local Government Code."

Movants-intervenors’ argument is unmeritorious. As cited in Yakazi Torres Manufacturing, Inc. v.


Court of Appeals, legislative power is the power to make, alter, and repeal laws; thus, the authority
to amend, change, or modify a law is part of such legislative power. However, in this case, R.A. No.
9355, is not a law amending the Local Government Code on the criteria for the creation of a
province. Instead, R.A. No. 9355 is a statute creating the Province of Dinagat Islands; hence, subject
to the constitutional provision on the creation of a province. The constitutional provision on the
creation of a province found in Section 10, Article X of the Constitution states:

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.8

Pursuant to the Constitution, the Local Government Code of 1991, in Section 461 thereof, prescribed
the criteria for the creation of a province.9 Hence, R.A. No. 9355 did not amend the Local
Government Code, but was subject to the criteria contained in Section 461 of the Local Government
Code in creating the Province of Dinagat Islands.

Moreover, Section 6 of the Local Government Code provides:

SEC. 6. Authority to Create Local Government Units. – A local government unit may be created,
divided, merged, abolished, or its boundaries substantially altered either by law enacted by
Congress in the case of a province, city, municipality, or any other political subdivision, or by
ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the
case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code. (Emphasis and underscoring supplied.)

Thus, even the Local Government Code clearly provides that Congress may enact a law creating a
local government unit, which in this case involves the creation of a province, but such creation is
subject to such limitations and requirements prescribed in the Local Government Code. Hence, the
creation of the Province of Dinagat Islands is subject to the requirements contained in Section 461 of
the Local Government Code. Since R.A. No. 9355 failed to comply with the land area or population
requirement in the creation of the province, it was declared unconstitutional in the Decision dated
February 10, 2010.

League of Cities of the Philippines v. Commission on Elections, which was cited by movants-
intervenors, does not apply to this case. The Court held in its Resolution dated May 12, 2010, thus:

In League of Cities of the Philippines v. Commission on Elections, the Court held that the 16
cityhood laws, whose validity were questioned therein, were constitutional mainly because it found
that the said cityhood laws merely carried out the intent of R.A. No. 9009, now Sec. 450 of the Local
Government Code, to exempt therein respondents local government units (LGUs) from the P100
million income requirement since the said LGUs had pending cityhood bills long before the
enactment of R.A. No. 9009. Each one of the 16 cityhood laws contained a provision exempting the
municipality covered from the P100 million income requirement.

In this case, R.A. No. 9355 was declared unconstitutional because there was utter failure to comply
with either the population or territorial requirement for the creation of a province under Section 461 of
the Local Government Code.

Contrary to the contention of the movants-intervenors, Article 9 (2) of the Rules and Regulations
Implementing the Local Government Code, which exempts a proposed province from the land area
requirement if it is composed of one or more islands, cannot be deemed incorporated in R.A. No.
9355, because rules and regulations cannot go beyond the terms and provisions of the basic law.
Thus, in the Decision dated February 10, 2010, the Court held that Article 9 (2) of the Implementing
Rules of the Local Government Code is null and void, because the exemption is not found in Section
461 of the Local Government Code.10 There is no dispute that in case of discrepancy between the
basic law and the rules and regulations implementing the said law, the basic law prevails, because
the rules and regulations cannot go beyond the terms and provisions of the basic law.11

Next, movants-intervenors stated that assuming that Section 461 of the Local Government Code
was not amended by R.A. No. 9355, they still sought reconsideration of the Resolution dated May
12, 2010, as they adopted the interpretation of the ponente and Justice Perez of Section 461 of the
Local Government Code in their respective dissenting opinions. They asserted that the correct
interpretation of Section 461 of the Local Government Code is that of Justice Nachura.
It must be stressed that the movants-intervenors’ assertion was already answered in the Resolution
dated May 12, 2010, denying the motions for reconsideration of the OSG and Governor Geraldine
Ecleo-Villaroman, representing the Province of Dinagat Islands. The Court, in the said Resolution,
answered the same contention, thus:

The movants now argue that the correct interpretation of Sec. 461 of the Local Government Code is
the one stated in the Dissenting Opinion of Associate Justice Antonio B. Nachura.

In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to comply with the
population requirement. However, he contends that the Province of Dinagat Islands did not fail to
comply with the territorial requirement because it is composed of a group of islands; hence, it is
exempt from compliance not only with the territorial contiguity requirement, but also with the 2,000-
square- kilometer land area criterion in Sec. 461 of the Local Government Code, which is
reproduced for easy reference:

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as


certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office: Provided, That, the creation thereof shall
not reduce the land area, population, and income of the original unit or units at the
time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income.

Justice Nachura contends that the stipulation in paragraph (b) qualifies not merely the word
"contiguous" in paragraph (a) (i) in the same provision, but rather the entirety of paragraph (a) (i) that
reads:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands
Management Bureau[.]

He argues that the whole paragraph on contiguity and land area in paragraph (a) (i) above is the one
being referred to in the exemption from the territorial requirement in paragraph (b). Thus, he
contends that if the province to be created is composed of islands, like the one in this case, then, its
territory need not be contiguous and need not have an area of at least 2,000 square kilometers. He
asserts that this is because as the law is worded, contiguity and land area are not two distinct and
separate requirements, but they qualify each other. An exemption from one of the two component
requirements in paragraph (a) (i) allegedly necessitates an exemption from the other component
requirement because the non-attendance of one results in the absence of a reason for the other
component requirement to effect a qualification.
Similarly, the OSG contends that when paragraph (b) of Section 461 of the Local Government Code
provides that the "territory need not be contiguous if it comprises two (2) or more islands," it
necessarily dispenses the 2,000 sq. km. land area requirement, lest such exemption would not make
sense. The OSG argues that in stating that a "territory need not be contiguous if it comprises two (2)
or more islands," the law could not have meant to define the obvious. The land mass of two or more
island will never be contiguous as it is covered by bodies of water. It is then but logical that the
territory of a proposed province that is composed of one or more islands need not be contiguous or
be at least 2,000 sq. km.

The Court is not persuaded.

Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the
Local Government Code provides:

SEC. 7. Creation and Conversion.—As a general rule, the creation of a local government unit or its
conversion from one level to another level shall be based on verifiable indicators of viability and
projected capacity to provide services, to wit:

(a) Income.—It must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its
population, as expected of the local government unit concerned;

(b) Population.—It shall be determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and

(c) Land area.—It must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the others; properly identified by metes
and bounds with technical descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF),
the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).

It must be emphasized that Section 7 above, which provides for the general rule in the creation of a
local government unit, states in paragraph ( c ) thereof that the land area must be
contiguous and sufficient to provide for such basic services and facilities to meet the requirements of
its populace.

Therefore, there are two requirements for land area: (1) The land area must be contiguous; and (2)
the land area must be sufficient to provide for such basic services and facilities to meet the
requirements of its populace. A sufficient land area in the creation of a province is at least 2,000
square kilometers, as provided by Section 461 of the Local Government Code.

Thus, Section 461 of the Local Government Code, providing the requisites for the creation of a
province, specifically states the requirement of "a contiguous territory of at least two thousand
(2,000) square kilometers."

Hence, contrary to the arguments of both movants, the requirement of a contiguous territory and the
requirement of a land area of at least 2,000 square kilometers are distinct and separate
requirements for land area under paragraph (a) (i) of Section 461 and Section 7 (c) of the Local
Government Code.

However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of
territorial contiguity, thus:

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the province.

Contrary to the contention of the movants, the exemption above pertains only to the requirement of
territorial contiguity. It clearly states that the requirement of territorial contiguity may be dispensed
with in the case of a province comprising two or more islands or is separated by a chartered city or
cities which do not contribute to the income of the province.

Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is
composed of two or more islands or when the territory of a province is separated by a chartered city
or cities, such province need not comply with the land area requirement of at least 2,000 square
kilometers or the requirement in paragraph (a) (i) of Section 461of the Local Government Code.

Where the law is free from ambiguity, the court may not introduce exceptions or conditions where
none is provided from considerations of convenience, public welfare, or for any laudable purpose;
neither may it engraft into the law qualifications not contemplated, nor construe its provisions by
taking into account questions of expediency, good faith, practical utility and other similar reasons so
as to relax non-compliance therewith. Where the law speaks in clear and categorical language, there
is no room for interpretation, but only for application.1avvphi1

Further, movants-intervenors pointed out that pursuant to R.A. No. 9355, the Province of Dinagat
Islands has been organized and is functioning as a province, which cannot just be ignored. Thus, a
more realistic and pragmatic view should have been adopted by the Court in its Resolution

dated May 12, 2010 following the Operative Fact Doctrine, citing Planters Products, Inc. v. Fertiphil
Corporation.12

In Planters Products, Inc. v. Fertiphil Corporation, petitioner Planters Products, Inc. (PPI) and private
respondent Fertiphil were private corporations, which were both engaged in the importation and
distribution of fertilizers, pesticides and agricultural chemicals. On June 3, 1985, then President
Ferdinand Marcos issued LOI No. 1465, which provides:

3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula
a capital contribution component of not less than P10 per bag. This capital contribution shall be
collected until adequate capital is raised to make PPI viable. Such capital contribution shall be
applied by FPA to all domestic sales of fertilizers in the Philippines. (Underscoring supplied)

Pursuant to the LOI, Fertiphil paid P10.00 for every bag of fertilizer it sold in the domestic market to
the Fertilizer and Pesticide Authority (FPA), which amount FPA remitted to the depositary bank of
PPI. Fertiphil paid FPAP6,689,144.00 from July 8, 1985 to January 24, 1986.

After the 1986 EDSA Revolution, FPA voluntarily stopped the imposition of the P10.00 levy. Fertiphil
demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede
to the demand. Fertiphil filed a complaint for collection and damages against FPA and PPI with the
Regional Trial Court (RTC) of Makati City. It questioned the constitutionality of LOI No. 1465 for
being unjust, unreasonable, oppressive, invalid and an unlawful imposition that amounted to a denial
of due process of law. Fertiphil alleged that the LOI solely favored PPI, a privately owned
corporation, which used the proceeds to maintain its monopoly of the fertilizer industry.

The RTC ruled in favor of Fertiphil, and ordered PPI to pay Fertiphil the sum of P6,698,144.00 with
interest at 12% from the time of judicial demand; the sum of P100,000.00 as attorney’s fees; and the
cost of suit. Ruling that the imposition of the P10.00 levy was an exercise of the State’s inherent
power of taxation, the RTC invalidated the levy for violating the basic principle that taxes can only be
levied for public purpose. On appeal, the Court of Appeals affirmed the RTC Decision, but deleted
the award of attorney’s fees.

The Court upheld the decision of the Court of Appeals as LOI No. 1465 failed to comply with the
public purpose requirement for tax laws. As regards the argument of PPI that Fertiphil cannot seek a
refund based on the Operative Fact Doctrine, the Court held:

The general rule is that an unconstitutional law is void; the doctrine of operative fact is
inapplicable.

PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional.
It banks on the doctrine of operative fact, which provides that an unconstitutional law has an effect
before being declared unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even
if it is subsequently declared to be unconstitutional.

We cannot agree. It is settled that no question, issue or argument will be entertained on appeal,
unless it has been raised in the court a quo. PPI did not raise the applicability of the doctrine of
operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to
extricate itself from the dire effects of an unconstitutional law.

At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void.
It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal
contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay
the levy. All levies paid should be refunded in accordance with the general civil code principle
against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which
provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not
be excused by disuse or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and
the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on
those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration
of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done
by a municipality in reliance upon a law creating it.
Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil
under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the levies
paid were remitted and deposited to its bank account. Quite the reverse, it would be inequitable and
unjust not to order a refund. To do so would unjustly enrich PPI at the expense of Fertiphil. Article 22
of the Civil Code explicitly provides that "every person who, through an act of performance by
another comes into possession of something at the expense of the latter without just or legal ground
shall return the same to him." We cannot allow PPI to profit from an unconstitutional law. Justice and
equity dictate that PPI must refund the amounts paid by Fertiphil.13

In this case, the general rule applies that an unconstitutional law is void, and produces no legal
effect. As stated in the decision above, the doctrine of operative fact, as an exception to the general
rule, only applies as a matter of equity and fair play. The said doctrine recognizes that the actual
existence of a statute prior to a determination of unconstitutionality is an operative fact, and may
have consequences which cannot always be ignored. The doctrine was applied to a criminal case
when a declaration of unconstitutionality would put the accused in double jeopardy14 or would put in
limbo the acts done by a municipality in reliance upon a law creating it in the case of Municipality of
Malabang v. Benito.15

In Municipality of Malabang v. Benito, the Court ruled that Executive Order 386 creating the
Municipality of Malabang is void, and respondent officials were permanently restrained from
performing the duties and functions of their respective offices. Nevertheless, the Court stated there
was no basis for respondent officials’ apprehension that the invalidation of the executive order
creating Balabagan would have the effect of unsettling many an act done in reliance upon the
validity of the creation of that municipality, citing Chicot County Drainage District v. Baxter State
Bank, thus:16

x x x The actual existence of a statute, prior to such a determination, is an operative fact and may
have consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in
various aspects – with respect to particular relations, individual and corporate, and particular
conduct, private and official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These questions are
among the most difficult of those which have engaged the attention of courts, state and federal, and
it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified.17

Therefore, based on the foregoing, any question on the validity of acts done before the invalidation
of R.A. No. 9355 may be raised before the courts.

Lastly, movants-intervenors contended that the inhabitants of the Province of Dinagat Islands have
expressed their will, through their votes in a plebiscite, to be a province; hence, the Court should
uphold the will of the people and uphold the validity of R.A. No. 9355.

The contention does not persuade. The validity of R.A. No. 9355 creating the province of Dinagat
Islands depends on its compliance with Section 10, Article X of the Constitution, which states:

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.18
Although the political units directly affected by the creation of the Province of Dinagat Islands
approved the creation of the said province, R.A. No. 9355 failed to comply with the criteria for the
creation of the province contained in Section 461 of the Local Government Code; hence, it was
declared unconstitutional.

As cited in the Resolution dated May 12, 2010, Tan v. Comelec19 held:

x x x [T]he fact that such plebiscite had been held and a new province proclaimed and its officials
appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation
of the existence of this newly proclaimed province which petitioners strongly profess to have been
illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide the very excuse for perpetuation of such
wrong. For this court to yield to the respondents’ urging that, as there has been fait accompli, then
this Court should passively accept and accede to the prevailing situation is an unacceptable
suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with
mischief. Respondents’ submission will create a dangerous precedent. Should this Court decline
now to perform its duty of interpreting and indicating what the law is and should be, this might tempt
again those who strut about in the corridors of power to recklessly and with ulterior motives, create,
merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily,
confident that this Court will abstain from entertaining future challenges to their acts if they manage
to bring about a fait accompli.

In view of the foregoing, the Court acted in accordance with its sound discretion in denying movants-
intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for
Reconsideration of the Resolution dated May 12, 2010 as the issues raised by them lacked merit or
had already been resolved by the Court in its Decision dated February 10, 2010 and its Resolution
dated May 12, 2010 denying respondents’ Motion for Reconsideration. Moreover, under Section 2,
Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of
judgment by the trial court. Since this case originated from an original action filed before this Court,
the Court properly ruled that the appropriate time to file the motion-in-intervention is before and not
after resolution of this case, citing Republic v. Gingoyon.20 Further, when movants-intervenors filed
their Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration
of the Resolution dated May 12, 2010 on June 18, 2010, the Decision of February 10, 2010 had
already become final and executory on May 18, 2010.

Aside from urging the Court to take a hard look on the first and second arguments raised by
movants-intervenors, the ponente also wants the Court to consider his arguments for a
reconsideration of the Decision in this case.

The ponente states that the Court must bear in mind that the central policy considerations in the
creation of local government units are economic viability, efficient administration and capability to
deliver basic services, and the criteria prescribed by the Local Government Code, i.e., income,
population and land area, are all designed to accomplish these results. He adds that in this light,
Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria,
placing emphasis on which of them should enjoy preferential consideration. The ponente calls the
attention of the majority to the primordial criterion of economic viability in the creation of local
government units, particularly of a province, as intended by the framers of R.A. No. 7160.

The argument of the ponente has been discussed in his earlier Dissenting Opinion. It must be
pointed out that from the congressional debates cited by the ponente, the framers of R.A. No. 7160
or the Local Government Code of 1991 finally came out with the end result, that is, Section 461 of
R.A. No. 7160, which is the basis for the creation of a province. Section 461 of R.A. No. 7160
provides:

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as


certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income.

Thus, the requisites for the creation of a province, as provided by R.A. No. 7160, is an annual
income of not less than P20 million and either a contiguous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management Bureau, or a population of not less than
two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. As the
wordings of the law are plain and clear, compliance with the territorial requirement or population
requirement cannot be made light of or disregarded.

In this case, R.A. 9355 creating the Province of Dinagat Islands failed to comply with either the
territorial or the population requirement of the Local Government Code. The Court stated in its
Resolution dated May 12, 2010, thus:

As the law-making branch of the government, indeed, it was the Legislature that imposed the criteria
for the creation of a province as contained in Sec. 461 of the Local Government Code. No law has
yet been passed amending Sec. 461 of the Local Government Code, so only the criteria stated
therein are the bases for the creation of a province. The Constitution clearly mandates that the
criteria in the Local Government Code must be followed in the creation of a province; hence, any
derogation of or deviation from the criteria prescribed in the Local Government Code violates
Section 10, Art. X of the Constitution.

Further, the ponente states that the provisions of both R.A. No 7160 and the Rules and Regulations
Implementing the Local Government Code of 1991 (LGC-IRR) show that with respect to the creation
of municipalities, component cities, and provinces, the three indicators of viability and projected
capacity to provide services, i.e.,income, population, and land area, are provided for. He points out
that the exemption from the land area requirement when the local government unit to be created
consists of one (1) or more islands is expressly provided in Section 442 and Section 450 of R.A. No.
7160 and the LGC-IRR with respect to the creation of municipalities and component cities,
respectively, but the exemption is absent in the enumeration of the requisites for the creation of a
province under Section 461 of R.A. No. 7160, but is expressly stated under Article 9 (2) of the LGC-
IRR.
The ponente opines that there does not appear any rhyme or reason why this exemption should
apply to cities and municipalities, but not to provinces. He stated that considering the physical
configuration of the Philippine archipelago, there is a greater likelihood that islands or groups of
islands would form part of the land area of a newly-created province than in most cities or
municipalities. According to the ponente, it is, therefore, logical to infer that the genuine legislative
policy decision was expressed in Section 442 (for municipalities) and Section 450 (for cities) of R.A.
No. 7160, but was inadvertently omitted in Section 461 (for provinces).

The ponente submits that when the exemption was expressly provided in Article 9(2) of the LGC-
IRR, the inclusion was intended to correct the congressional oversight in Section 461 of R.A. No.
7160 -- and reflect the true legislative intent; thus, it would be in order for the Court to uphold the
validity of Article 9(2), LGC-IRR.

The ponente also submits that Article 9(2) of the LGC-IRR amounts to an executive construction of
the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect. He
contends that it is actually a detail expressly provided by the Oversight Committee to fill in the void,
honest mistake and oversight committed by Congress in Section 461 of R.A. No. 7160, taking into
account the spirit and intent of the law.

The ponente’s argument does not persuade. The Local Government Code took effect on January 1,
1992, so 19 years have lapsed since its enactment. If the Legislature committed the "congressional
oversight in Section 461 of R.A. No. 7160" as alleged by Justice Nachura, it would have amended
Section 461, which is a function of Congress. Substantial "oversights" in the basic law, particularly as
alleged with respect to Section 461 of R.A. No. 7160, cannot be corrected in the implementing rules
thereof, as it is settled rule that the implementing rules of the basic law cannot go beyond the scope
of the basic law.1awphi 1

Moreover, it should be pointed out that a province is "composed of a cluster of municipalities, or


municipalities and component cities,"21 and, therefore, has a bigger land area than that of a
municipality and a city, as provided by law. It is noted that the former Local Government Code
(Batas Pambansa Blg. 337) did not provide for a required land area in the creation of a municipality
and a city, but provided for a required land area in the creation of a province, which is 3,500 square
kilometers, now lessened to 2,000 square kilometers in the present Local Government Code. If only
the income matters in the creation of a province, then there would be no need for the distinctions in
the population and land area requirements provided for a municipality, city and province in the
present Local Government Code. It may be stated that unlike a municipality and a city, the territorial
requirement of a province contained in Section 46122 of the Local Government Code follows the
general rule in Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government
Units) of the same Code, thus:

SEC. 7. Creation and Conversion.—As a general rule, the creation of a local government unit or its
conversion from one level to another level shall be based on verifiable indicators of viability and
projected capacity to provide services, to wit:

(a) Income.—It must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its
population, as expected of the local government unit concerned;

(b) Population.—It shall be determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and
(c) Land area.—It must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the others; properly identified by metes
and bounds with technical descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF),
the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).23

Moreover, the argument that Article 9(2) of the LGC-IRR amounts to an executive construction of the
provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect, citing the
case of Galarosa v. Valencia,24 has already been ruled upon in the Decision dated February 10,
2010, thus:

Further, citing Galarosa v. Valencia, the Office of the Solicitor General contends that the IRRs issued
by the Oversight Committee composed of members of the legislative and executive branches of the
government are entitled to great weight and respect, as they are in the nature of executive
construction.

The case is not in point. In Galarosa, the issue was whether or not Galarosa could continue to serve
as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office of
the elective members of theSangguniang Bayan of Sorsogon expired. Galarosa was the incumbent
president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of
Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB)
of Sorsogon pursuant to Executive Order No. 342 in relation to Section 146 of Batas Pambansa Blg.
337, the former Local Government Code.

Section 494 of the Local Government Code of 1991 states that the duly elected presidents of
the liga [ng mga barangay] at the municipal, city and provincial levels, including the component cities
and municipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang
bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as
such only during their term of office as presidents of the liga chapters which, in no case, shall be
beyond the term of office of the sanggunian concerned. The section, however, does not fix the
specific duration of their term as liga president. The Court held that this was left to the by-laws of
the liga pursuant to Article 211(g) of the Rules and Regulations Implementing the Local Government
Code of 1991. Moreover, there was no indication that Sections 491 and 494 should be given
retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be
applied prospectively.

The Court stated that there is no law that prohibits ABC presidents from holding over as members of
theSangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee
upon specific mandate of Section 533 of the Local Government Code, expressly recognizes and
grants the hold-over authority to the ABC presidents under Article 210, Rule XXIX. The Court upheld
the application of the hold-over doctrine in the provisions of the IRR and the issuances of the DILG,
whose purpose was to prevent a hiatus in the government pending the time when the successor
may be chosen and inducted into office.

The Court held that Section 494 of the Local Government Code could not have been intended to
allow a gap in the representation of the barangays, through the presidents of the ABC, in
the sanggunian. Since the term of office of the punong barangays elected in the March 28, 1989
election and the term of office of the presidents of the ABC had not yet expired, and taking into
account the special role conferred upon, and the broader powers and functions vested in
the barangays by the Code, it was inferred that the Code never intended to deprive thebarangays of
their representation in the sangguniang bayan during the interregnum when the liga had yet to be
formally organized with the election of its officers.

Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the
IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of
executive construction, which were entitled to great weight and respect.

Courts determine the intent of the law from the literal language of the law within the law’s four
corners. If the language of the law is plain, clear and unambiguous, courts simply apply the law
according to its express terms. If a literal application of the law results in absurdity, impossibility or
injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history
of the law, or may consider the implementing rules and regulations and pertinent executive
issuances in the nature of executive construction.

In this case, the requirements for the creation of a province contained in Section 461 of the Local
Government Code are clear, plain and unambiguous, and its literal application does not result in
absurdity or injustice. Hence, the provision in Article 9(2) of the IRR exempting a proposed province
composed of one or more islands from the land-area requirement cannot be considered an
executive construction of the criteria prescribed by the Local Government Code. It is an extraneous
provision not intended by the Local Government Code, and is, therefore, null and void.

The ponente also stated that it may be well to remember basic policy considerations underpinning
the principle of local autonomy, and cited Section 2, R.A. No 7160, which provides:

Sec. 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local government
units.

Indeed, the policy of the State is that "the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their fullest development as self-
reliant communities and make them more effective partners in the attainment of national goals."

However, it must stressed that in the creation of the territorial and political subdivisions of the State,
the requirements provided by the Local Government Code must also be complied with, which R.A.
No. 9355 failed to do.

Further, the ponente states that consistent with the declared policy to provide local government units
local autonomy, he submits that the territory, contiguity and minimum land area requirements for
prospective local government units should be construed liberally in order to achieve the desired
results. He adds that this liberal interpretation is more appropriate, taking into account the rules on
construction of the LGC, viz:

SEC. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the following
rules shall apply:

xxxx
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to
local government units in accelerating economic development and upgrading the quality of life for
the people in the community;

The ponente seeks for a liberal interpretation as regards the territorial requirement in the creation of
a province based on the rules of interpretation of the general welfare provisions of the Local
Government Code. General welfare is clarified in Section 16 of the Local Government Code, thus:

Sec. 16. General Welfare.—Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

The Local Government Code provides that it is "[t]he general welfare provisions in this Code which
shall be liberally interpreted to give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the community." Nowhere is it stated
therein that the provisions for the creation of a local government unit, the province in particular,
should be liberally interpreted. Moreover, since the criteria for the creation of a province under the
Local Government Code are clear, there is no room for interpretation, but only application.

To reiterate, the constitutional basis for the creation of a province is laid down in Section 10, Article
X of the Constitution, which provides that no province may be created, divided, merged, abolished,
or its boundary substantially altered, except in accordance with the criteria established in the Local
Government Code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected. The criteria for the creation of a province are found in Section 461 of
the Local Government Code. Moreover, Section 6 of the Local Government Code provides that "[a]
local government unit may be created xxx by law enacted by congress in the case of a province xxx
subject to such limitations and requirements prescribed in this Code."

Based on the criteria for the creation of a province provided for in Section 461 of the Local
Government, the Court found that R.A. No. 9355 creating the Province of Dinagat Islands failed to
comply with the population or territorial requirement; hence, R.A. No. 9355 was declared
unconstitutional.

The Decision in this case was promulgated on February 10, 2010. The motions for reconsideration
of the Decision was denied on May 12, 2010. The Decision of February 10, 2010 became final and
executory on May 18, 2010, as evidenced by the Entry of Judgment25 issued by the Clerk of Court.
Movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors’
Motion for Reconsideration of the Resolution dated May 12, 201 only on June 18, 2010, or after the
resolution of the case and one month after the Decision in this case already became final and
executory. Hence, the Court properly denied the said motion.

The ponente contends that there is an imperative to grant the Urgent Motion to Recall Entry of
Judgment filed on October 29, 2010 by movants-intervenors for the simple reason that the Entry of
Judgment was prematurely issued on October 5, 2010 in view of the pendency of the movants-
intervenor’s motion for reconsideration of the July 20, 2010 Resolution, which was filed on
September 7, 2010.
I cannot agree with such contention. Although Entry of Judgment was made on October 5, 2010, it
must be borne in mind that the Decision in this case became final and executory on May 18, 2010,
as evidenced by the Entry of Judgment26 issued by the Clerk of Court. If the Court follows Section 2,
Rule 36 of the Rules of Court, the date of finality of the judgment is deemed to be the date of its
entry, thus:

Sec. 2. Entry of judgments and final orders.—If no appeal or motion for new trial or reconsideration
is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered
by the clerk in the book of entries of judgments. The date of finality of the judgment or final order
shall be deemed to be the date of its entry. The record shall contain the dispositive part of the
judgment or final order and shall be signed by the clerk, with a certificate that such judgment of final
order has become final and executory.

The amendment in Section 2 above makes finality and entry simultaneous by operation of law, and
eliminates the confusion and guesswork whenever the parties could not have access, for one reason
or another, to the Book of Entries of Judgments.27 It also avoids the usual problem where the
physical act of writing out the entry is delayed by neglect or sloth.28

In addition, the Court properly denied on July 20, 2010 the movants-intervenors’ Motion for Leave to
Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated
May 12, 2010, since it was filed after the resolution of the case and after the Decision in this case
had become final and executory on May 18, 2010. With the denial of the Motion for Leave to
Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated
May 12, 2010, the movants-intervenors’ did not have legal standing to intervene; hence, their motion
for reconsideration of the July 20, 2010 Resolution has no bearing on the validity of the Entry of
Judgment that was recorded in the Book of Entries of Judgments on October 5, 2010. Therefore, the
Entry of Judgment cannot be recalled on the ground of pendency of the movants-intervenor’s motion
for reconsideration of the July 20, 2010 Resolution.

Since movants-intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’
Motion for Reconsideration of the Resolution dated May 12, 2010 was denied in the Resolution
dated July 20, 2010, the motion for reconsideration of the July 20, 2010 Resolution filed on
September 7, 2010 by movants-intervenors was recommended to also be denied, but has yet to be
acted on by the Court.

Further, on October 22, 2010, respondent New Province of Dinagat Islands, represented by
Governor Geraldine Ecleo-Villaroman, filed an Urgent Omnibus Motion (To resolve Motion for Leave
of Court to Admit Second Motion for Reconsideration and, to set aside Entry of Judgment).
Respondent admitted that it filed the Motion for Leave of Court to Admit Second Motion for
Reconsideration on May 26, 2010, twelve (12) days after receipt of the Resolution dated May 12,
2010 denying respondents’ motion for reconsideration.

It should be pointed out that the Court has acted on respondent New Province of Dinagat Islands’
Motion for Leave of Court to Admit Second Motion for Reconsideration and the aforesaid Motion for
Reconsideration, which were filed on May 26, 2010 (after the Decision had become final and
executory on May 18, 2010), in the Court’s Resolution dated June 26, 2010. Treated as a second
motion for reconsideration of the Decision, which is disallowed, the Court resolved to note without
action the said motions in view of the Resolution dated May 12, 2010 denying the motions for
reconsideration of the February 10, 2010 Decision. Section 2, Rule 52 of the Rules of Court states:

SEC. 2. Second motion for reconsideration.—No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained.
As the decision in this case became final and executory on May 18, 2010, the decision is
unalterable. In Gomez v. Correa,29 the Court held:
1avv phi 1

It is settled that when a final judgment is executory, it becomes immutable and unalterable. The
judgment 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. The doctrine is
founded on considerations of public policy and sound practice that, at the risk of occasional errors,
judgments must become final at some definite point in time.

The only recognized exceptions are the correction of clerical errors or the making of so-called nunc
pro tunc entries in which case there is no prejudice to any party, and where the judgment is void.

To stress, the motion for reconsideration filed by movants-intervenors on the denial of the motion for
internvention should have been denied since to grant the same would be tantamount to reopening a
case which is already final. Worse, movants-intervenors are not even original parties to the present
case and therefore are not in a position to file a motion to recall a judgment which is already final
and executory.

In view of the foregoing, I maintain that the movants-intervenors’ Motion for Leave to Intervene and
to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010,
which was filed only on June 18, 2010 or after resolution of the case and after the Decision of
February 10, 2010 had become final and executory on May 18, 2010, was properly denied in the
Resolution dated July 20, 2010. Consequently, I maintain my stand that movants-intervenor’s Motion
for Reconsideration of the Resolution dated July 20, 2010, which motion was filed on September 7,
2010, be denied for lack of merit. Further, it is recommended that movants-intervenors’ Urgent
Motion to Recall Entry of Judgment filed on October 29, 2010, and the Omnibus Motion (To resolve
Motion for Leave of Court to Admit Second Motion for Reconsideration and to set aside Entry of
Judgment) filed on October 22, 2010 by respondent New Province of Dinagat Islands, represented
by Governor Geraldine Ecleo-Villaroman, be likewise denied for lack of merit.

DIOSDADO M. PERALTA
Associate Justice

Footnotes

1
Rollo, p. 1202.

2
Based on the results of the May 10, 2010 elections, movant Congressman Francisco T.
Matugas is the Congressman-Elect of the First Legislative District of Surigao del Norte;
movants Hon. Sol T. Matugas and Hon. Arturo Carlos A. Egay, Jr. are the Governor-Elect
and Vice-Governor-Elect, respectively, of the Province of Surigao del Norte; while movants
Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos,
and Hon. Cesar M. Bagundol are the Board Members-Elect of the First Provincial District of
Surigao del Norte.

3
Entitled IN THE MATTER OF THE EFFECT OF THE DECISION OF THE SUPREME
COURT IN THE CASE OF "RODOLFO G. NAVARRO, ET. AL, vs. EXECUTIVE
SECRETARY EDUARDO ERMITA representing the President of the Philippines, ET. AL"
(G.R. No. 180050), DECLARING THE CREATION OF THE PROVINCE OF DINAGAT
ISLANDS AS UNCONSTITUTIONAL THEREBY REVERTING SAID PROVINCE TO ITS
PREVIOUS STATUS AS PART OF THE PROVINCE OF SURIGAO DEL NORTE.

4
Citing Heirs of Geronimo Restrivera v. De Guzman, G.R. No. 146540, July 14, 2004, 434
SCRA 456.

5
G.R. No. 166429, February 1, 2006, 481 SCRA 457.

6
G.R. Nos. 176951, 177499, 178056, December 21, 2009, 608 SCRA 636.

7
G.R. No. 130584, June 27, 2006, 493 SCRA 86, 97.

8
Emphasis supplied.

9
SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average
annual income, as certified by the Department of Finance, of not less than Twenty million
pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers,


as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.
(Emphasis supplied.)

10
For comparison, Section 461 of the Local Government Code of 1991 and Article 9 of the
Rules and Regulations Implementing the Local Government Code of 1991 are reproduced:

The Local Government Code

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than
Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of
the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as


certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

Rules and Regulations Implementing the Local Government Code of 1991

ART. 9. Provinces.—(a) Requisites for creation—A province shall not be created


unless the following requisites on income and either population or land area are
present:

(1) Income — An average annual income of not less than Twenty Million
Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive
years based on 1991 constant prices, as certified by DOF. The average
annual income shall include the income accruing to the general fund,
exclusive of special funds, special accounts, transfers, and nonrecurring
income; and

(2) Population or land area - Population which shall not be less than two
hundred fifty thousand (250,000) inhabitants, as certified by National
Statistics Office; or land area which must be contiguous with an area of at
least two thousand (2,000) square kilometers, as certified by LMB. The
territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income
of the province. The land area requirement shall not apply where the
proposed province is composed of one (1) or more islands. The territorial
jurisdiction of a province sought to be created shall be properly identified by
metes and bounds. (Emphasis supplied.)

11
Hijo Plantation, Inc. v. Central Bank, G.R. No. L-34526, August 9, 1988, 164 SCRA 192.

12
G.R. No. 166006, March 14, 2008, 548 SCRA 485.

13
Emphasis supplied.

14
Tan v. Barrios, G.R. Nos. 85481-82, October 18, 1990, 190 SCRA 686.

15
No. L-28113, March 28, 1969.

16
308 U.S. 371, 374 (1940).

17
Municipality of Malabang v. Benito, supra note 15, p. 540.
18
Emphasis supplied.

19
No. L-73155, July 11, 1986, 142 SCRA 727, 741-742.

20
G.R. No. 166429, February 1, 2006, 481 SCRA 457.

21
Section 459, The Local Government Code of 1991.

22
SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average
annual income, as certified by the Department of Finance, of not less than Twenty million
pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers,


as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

23
Emphasis supplied.

24
G.R. No. 109455, November 11, 1993, 227 SCRA 728.

25
Rollo, p. 1202.

26
Id. at 1202.

27
Florenz D. Regalado, Remedial Law Compendium, Vol. I, Eight Revised Edition, © 2002,
p. 381.

28
Id.

29
G.R. No. 153923, October 2, 2009, 602 SCRA 40, 46-47.

The Lawphil Project - Arellano Law Foundation


CONCURRING OPINION

DEL CASTILLO, J.:

Great cases, like hard cases, make bad law. For great cases are called great not by reason of their
real importance in shaping the law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes what previously was clear seem
doubtful, and before which even well settled principles of law will bend.

Justice Oliver Wendell Holmes

Northern Securities Co. v. United States 1

On the abstract principles which govern courts in construing legislative acts, no difference of opinion
can exist. It is only in the application of those principles that the difference discovers itself.

Chief Justice John Marshall

United States v. Fisher2

Considering the circumstances which supervened after the promulgation of the Decision on
February 10, 2010 and Resolution dated May 12, 2010, I find myself reconsidering my previous
position. Mr. Justice Antonio Eduardo B. Nachura has himself identified factors not previously
considered by this Court, which, in my view, warrant a reversal of our previous rulings.

The case before us concerns the proper interpretation of Section 461 of Republic Act (RA) No. 7160,
also known as the Local Government Code (LGC), which prescribes the criteria for the creation of a
province as follows:

SEC. 461. Requisites for Creation. – (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers as


certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income.3 (Underscoring
supplied)
To implement the provisions of the LGC, the Oversight Committee (created pursuant to Sec. 533 of
the LGC) formulated the Implementing Rules and Regulations to carry out the provisions of the law.
Article 9 of said Rules and Regulations provides:

Art. 9 Provinces – (a) Requisites for Creation. – A province shall not be created unless the following
requisites on income and either population or land area are present:

(i) Income - An average annual income of not less than Twenty million pesos
(P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by the DOF. The average annual income shall include the
income accruing to the general fund, exclusive of special funds, special accounts, transfers,
and non-recurring income; and

(ii) Population or land area – Population shall not be less than two hundred fifty thousand
(250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an
area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory
need not be contiguous if it comprises two (2) or more islands or is separated by a chartered
city or cities which do not contribute to the income of the province. The land area
requirement shall not apply where the proposed province is composed of one (1) or more
islands. The territorial jurisdiction of a province sought to be created shall be properly
identified by metes and bounds.

Since our May 12, 2010 ruling (which denied respondents’ respective Motions for Reconsideration),
the Office of the Solicitor General (representing the Republic of the Philippines) and Gov. Geraldine
Ecleo Villaroman (representing the new Province of the Dinagat Islands), each sought leave to file a
Second Motion for Reconsideration on May 27, 2010 and May 26, 2010, respectively, which motions
were noted without action. The winning candidates for provincial and congressional seats in Surigao
del Norte also sought to intervene in this case; however, their motion for intervention was denied on
July 20, 2010.

Subsequent to the Motions for Reconsideration, Justice Nachura has taken pains to compare the
requisites for the creation of the different local government units (LGUs) in order to highlight what, in
my view, is a glaring inconsistency in the provisions of the law. To summarize:

LGU Land Area Requirement


Barangay No minimum land area requirement. Rather, the barangay must
be created out of a contiguous territory with a population of at
least two thousand (2,000) inhabitants [Sec. 386(a), LGC]

The territory need not be contiguous if it comprises two (2) or


more islands. [Sec. 386(b), LGC]
Municipality Contiguous territory of at least fifty (50) square kilometers

Note – the land area requirement is IN ADDITION to the income


requirement of at least Two Million Five Hundred Thousand
Pesos (PhP2,500,000.00) in average annual income for the last 2
consecutive years AND the population requirement of at least
Twenty Five Thousand (25,000) inhabitants. [Sec. 442(a), LGC]

The requirement on land area shall not apply where the


municipality proposed to be created is composed of one (1) or
more islands. The territory need not be contiguous if it comprises
two (2) or more islands. [Sec. 442(b), LGC]
City Contiguous territory of at least one hundred (100) square
kilometers

Note – a city must have an average annual income of at least


Twenty Million Pesos (PhP20,000,000.00) for the last 2
consecutive years AND comply with either the land area
requirement OR have a population of at least one hundred fifty
thousand (150,000) inhabitants. [Sec. 450(a), LGC]

The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands.
The territory need not be contiguous if it comprises two (2) or
more islands. [Sec 450(b), LGC]
Province Contiguous territory of at least two thousand (2,000) square
kilometers.

Note – a province must have an average annual income of at


least Twenty Million Pesos (PhP20,000,000.00) AND comply with
either the land area requirement OR have a population of at least
two hundred fifty thousand (250,000) inhabitants. [Sec. 461(a),
LGC]

The territory need not be contiguous if it comprises two (2) or


more islands or is separated by a chartered city or cities which do
not contribute to the income of the province. [Sec 461(b), LGC]

As Justice Nachura points out, as regards the creation of barangays, land area is not included as a
requirement. However, a minimum land area is provided for the creation of municipalities, cities, and
provinces. Furthermore, while an exemption4 is provided for municipalities and cities in cases where
the LGU concerned is composed of one or more islands, in stark contrast, no such exemption exists
with respect to provinces.

It is not difficult to see why no exemption is needed for barangays – why exempt them from a
requirement that does not even apply to them? In fact, the inclusion of the clause "[t]he territory need
not be contiguous if it comprises two (2) or more islands" in Sec. 386(b) of the LGC appears to be
surplusage. But I cannot see why there would be a difference in treatment between cities and
municipalities, on one hand, and provinces, on the other. In fact, as Justice Nachura points out, this
may lead to anomalous results. This leads me to conclude that Justice Nachura’s interpretation is
indeed correct – that the legislature fully intended to exempt LGUs from the land area requirement in
cases where the LGU concerned encompassed two or more islands, as provided in Section 442 (for
municipalities) and Section 450 (for cities), but this legislative policy was not carried over to Section
461 (for provinces). Consequently, Article 9(2) of the LGC’s Implementing Rules and Regulations
were precisely enacted in order to correct the congressional oversight.

Our esteemed colleague, Mr. Justice Diosdado M. Peralta, suggests that this interpretation is
implausible because even if there were any such oversight, Congress had every opportunity in the
last 19 years to correct its mistake. To this I would only observe that Congress has never, in the last
19 years, been faced with a situation where an amendment to Section 461 of the LGC was
necessary or desirable, and no case concerning the land area requirement for provinces has ever
been brought before this Court since the LGC’s enactment.5 The only case that has mentioned the
land area requirement for provinces, Tan v. Commission on Elections,6 (regarding the invalidation of
Batas Pambansa Bilang 885 which created the province of Negros Del Norte) dealt with the matter
only tangentially, at best.7

Justice Peralta also opines that there is no need to search for the legislative intent, since the
language of the law is plain, clear, and unambiguous. I would submit, however, that it is equally true
that the statute must be read as a whole, that its clauses and phrases are not detached and isolated
expressions, but that each and every part must be considered in order to ascertain its meaning.8

Therefore, the statute, read as a whole, in the light of its legislative history, cannot be said to
preclude the interpretation placed on it by the majority. But in interpreting a statute [such as the
Local Government Code], we cannot take one sentence, one section, or even the entire statute
alone and say that it has a "plain meaning" as if there were an objective formula in the few words
simply waiting to be grasped by the courts. Instead the statute must be read as a whole, taking all of
its provisions and reading them in the context of the legal fabric to which they are to be applied. An
interpretation that creates an admittedly anomalous result is not salved by the majority's apologia
that, if we read the statute in that fashion, Congress created the anomaly. Instead the question is
whether the statute read as a whole was intended by Congress to create such results. The law is not
an isolated bundle of capricious and inconsistent commands by a legislature presumed to react
mindlessly.9

It is also relevant that the Senate and the House of Representatives, represented by the Office of the
Solicitor General, have asserted that Congress intended that provinces composed of one or more
islands should be exempted from the 2,000 sq. km. land area requirement. Surely, the legislature’s
will in this case should be given deference, as a co-equal branch of government operating within its
area of constitutional authority.

I also cannot help but note that the Dinagat Islands is not the first small island-province which has
been separated from a larger province through legislative imprimatur. The Court may take judicial
notice of the fact that the island-provinces of Batanes (previously annexed to Cagayan),10 Camiguin
(previously a sub-province of Misamis Oriental),11 Siquijor (previously a sub-province of Negros
Oriental),12 Biliran (previously a sub-province of Leyte),13 Guimaras (previously a sub-province of
Iloilo),14 and Marinduque (previously annexed to Tayabas)15also have land areas of well below 1,000
square kilometers each.

To be clear, I am not making an equal protection argument, since none of these provinces were
created under the auspices of the LGC. I only point this out to show that Congress, in drafting the
LGC, was cognizant of the special circumstances surrounding the creation of island-provinces, and
evidently intended that economic development be a more significant consideration than size. The
Congressional deliberations bear this out:

CHAIRMAN Will you look at the case of – how many municipalities are there in Batanes
LINA: province?
CHAIRMAN Batanes is only six.
ALFELOR:
CHAIRMAN Six town. Siquijor?
LINA:
CHAIRMAN Siquijor. It is region?
ALFELOR:
CHAIRMAN Seven.
LINA:
CHAIRMAN Seven. Anim.
ALFELOR:
CHAIRMAN Six also.
LINA:
CHAIRMAN Six also.
ALFELOR:
CHAIRMAN It seems with a minimum number of towns?
LINA:
CHAIRMAN The population of Siquijor is only 70 thousand, not even one congressional
ALFELOR: district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka
nga ako ngayon.
CHAIRMAN Camiguin, Camiguin.
LINA:
CHAIRMAN That is region? Camiguin has five municipalities, with a population of 63
ALFELOR: thousand. But we do not hold it against the province because maybe that’s
one stimulant where growth can grow, can start. The land area for Camiguin
is only 229 square kilometers. So if we hard fast on requirements of, we set a
minimum for every province, palagay ko we just leave it to legislation, eh.
Anyway, the Constitution is very clear that in case we would like to divide, we
submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng
set ng minimum, tila yata mahihirapan tayo eh. Because what is really the
thrust of the Local Government Code? Growth. To devolve powers in order
for the community to have its own idea how they will stimulate growth in their
respective areas.

So in every geographical condition, mayroong sariling idiosyncrasies eh. We


cannot make a generalization.16

Though this Court certainly has the authority to override the legislative interpretation, I do not believe
it is appropriate or necessary in this instance. Rather, we should acknowledge the "strong
presumption that a legislature understands and correctly appreciates the needs of its own people
[and] that its laws are directed to problems made manifest by experience."17

I do not propose that the Court overturn its settled precedent to the effect that Implementing Rules
and Regulations cannot go beyond the terms of the statute. But under these limited circumstances –
where a reading of the entire law reveals inconsistencies which this Court must reconcile, where the
legislature has informed the Court of its intentions in drafting the law, and where the legislative
history of the LGC leads one to the inescapable conclusion that the primary consideration in the
creation of provinces is actually administrative convenience, economic viability, and capacity for
development - then it would be far more just to give effect to the will of the legislature in this case.

In the words of Mr. Justice Isagani Cruz:


But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should
never be interpreted in such a way as to cause injustice as this is never within the legislative intent.
An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to
render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to
apply them just the same, in slavish obedience to their language. What we do instead is find a
balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are
apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again,
"where these words import a policy that goes beyond them." While we admittedly may not legislate,
we nevertheless have the power to interpret the law in such a way as to reflect the will of the
legislature. While we may not read into the law a purpose that is not there, we nevertheless have the
right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth"
but to "the spirit that vivifieth," to give effect to the law maker's will.

The spirit, rather than the letter of a statute determines its construction, hence, a statute must be
read according to its spirit or intent. For what is within the spirit is within the letter but although it is
not within the letter thereof, and that which is within the letter but not within the spirit is not within the
statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the
statute as if within the letter; and a thing which is within the letter of the statute is not within the
statute unless within the intent of the lawmakers.18

For these reasons, I thus concur in the opinion of Justice Nachura.

MARIANO C. DEL CASTILLO


Associate Justice

Footnotes

1
193 U.S. 197, 400-411 (1904) (Holmes, J. dissenting).

2
6 U.S. 358 (1805).

3
Article X, Section 10 of the Constitution also provides that "[n]o province, city, municipality,
or barangay may be created, divided, merged, abolished or its boundary substantially
altered, except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected."
4
That "[t]he requirement on land area shall not apply where the city proposed to be created
is composed of one (1) or more islands."

5
Since the effectivity of the Local Government Code on January 11, 1992, no issue has
been raised concerning the land area requirement of provinces. The following provinces
have been successfully created since 1992 – Biliran, Guimaras, Saranggani, Kalinga,
Apayao, Compostela Valley, and Zamboanga Sibugay, and all of them had land areas of
more than 2,000 sq. km. each.

Biliran and Guimaras (previously subprovinces of Leyte and Iloilo, respectively) were
converted into regular provinces, pursuant to Sec. 462 of the Local Government
Code. Sec. 462 provides:

SEC. 462. Existing Sub-Provinces. - Existing sub- provinces are hereby converted
into regular provinces upon approval by a majority of the votes cast in a plebiscite to
be held in the said subprovinces and the original provinces directly affected. The
plebiscite shall be conducted by the Comelec simultaneously with the national
elections following the effectivity of this Code.

Saranggani was separated from South Cotabato in accordance with Republic Act No.
7228, An Act Creating The Province Of Sarangani (1992). It has a land area of 3,972
sq. km. (http://www.sarangani.gov.ph/seventowns.php).

Kalinga-Apayao was separated into the provinces of Kalinga and Apayao by virtue of
Republic Act No. 7878, An Act Converting The Sub-Provinces Of Kalinga And
Apayao Into Regular Provinces To Be Known As The Province Of Kalinga And The
Province Of Apayao, Amending For The Purpose Republic Act No. 4695 (1995).
Kalinga has a land area of 3,164.3 sq. km.
(http://www.nscb.gov.ph/rucar/fnf_kalinga.htm) while Apayao has a land area of
4,120 sq. km. (http://www.nscb.gov.ph/rucar/fnf_apayao.htm)

Compostela Valley was separated from Davao by virtue of Republic Act No. 8470,
An Act Creating The Province Of Compostela Valley From The Province Of Davao
Del Norte, And For Other Purposes (1998), and has a land area of 4,667 sq. km.
(http://www.nscb.gov.ph/ru11/prov_profile/comval.htm).

Zamboanga Sibugay was separated from Zamboanga del Sur by virtue of Republic
Act No. 8973, An Act Creating The Province Of Zamboanga Sibugay From The
Province Of Zamboanga Del Sur And For Other Purposes (2000). It has a land area
of 3,362.22 sq. km. (http://www.zamboanga.com/zs/).

6
226 Phil. 624 (1986).

7
Tan v. Commission on Elections did not directly discuss the requirement of land area under
Batas Pambansa Bilang 337, but rather, concerned the proper construction of the "unit or
units affected" for a plebiscite. However, the Court did state that the "territory" in Section 197
of Batas Pambansa Bilang 337 was intended to apply to land area only.

8
Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517,
June 22, 2010, citing Land Bank of the Philippines v. AMS Farming Corporation, G.R. No.
174971, October 15, 2008, 569 SCRA 154, 183, Mactan-Cebu International Airport Authority
v. Urgello, G.R. No. 162288, April 4, 2007, 520 SCRA 515, 535, and Smart Communications,
Inc. v. The City of Davao, G.R. No. 155491, September 16, 2008, 565 SCRA 237, 247-248.

9
United States v Acres of Land Situated in Grenada and Yalobusha Counties Mississippi Jg
[1983] USCA5 583; 704 F.2d 800; 20 ERC 1025 (12 May 1983).

10
Act No. 1952, An Act to Provide for the Establishment of the Province of Batanes; to
Amend Paragraph Seven of Section Sixty Eight of Act Numbered Eleven Hundred Eighty
Nine in Certain Particulars; to Authorize the Approval of the Governor-General to extend the
Time for the Payment without Penalty and Taxes and Licenses; to Amend Section Five of
Act Numbered Fifteen Hundred and Eighty Two entitled the "Election Law" by Increasing the
Number of Delegates to the Philippine Assembly to Eighty One, and for other Purposes
(1909).

11
Republic Act No. 4669, An Act Separating the Subprovince of Camiguin from the Province
of Misamis Oriental and Establishing it as an Independent Province (1966).

12
Republic Act No. 6398, An Act Separating the Subprovince of Siquijor from the Province of
Oriental Negros and Establishing it as an Independent Province (1971).

13
Sec. 462 of the Local Government Code.

14
Id.

15
Act No. 2880, An Act Authorizing the Separation of the Subprovince of Marinduque from
the Province of Tayabas and the Reestablishment of the Former Province of Marinduque,
and for other Purposes (1920).

16
Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp.
18-28, in FN 14 of Justice Nachura’s Reflections.

17
Enron Corp. v. Spring Independent School District, 922 S.W. 2d 931; Middleton v. Texas
Power & Light Co. (1919), 249 U.S. 152, at 157.

18
Alonzo v. Intermediate Appellate Court, 234 Phil. 267, 272-273 (1987).

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

ABAD, J.:

I fully concur in the resolution that Justice Antonio Eduardo Nachura wrote for the majority. I would
want, however, to reply briefly to the somewhat harsh criticism hurled against the Court in
connection with its action.
The Court is accused of "flip-flopping" in this case as in the others before it, specifically the case of
the sixteen municipalities that Congress converted into cities. Since the Court is a collegial body, the
implication is that its members or the majority collectively flip-flopped in their decisions.

But, as I said in my concurring opinion in the Court’s April 12, 2011 resolution in the League of Cities
case,1 the charge is unfair, as it is baseless. The Court is not a living person whose decisions and
actions are ruled by the whims of one mind. As a collegial body, the Court acts by consensus among
its fifteen members.

In the League of Cities,2 neither all the Justices nor most of them did a somersault as implicitly
suggested. Congress passed a number of laws converting sixteen municipalities into cities. The
League of Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities
involved did not meet the P100 million minimum income requirement of the Local Government Code.
For their part, the municipalities countered that their laws constituted valid legislative amendments of
such requirement.

The Court originally voted in the case on November 18, 2008. A majority of six Justices voted to
annul the laws, five members dissented, and four took no part (6-5-4). The lead of those who voted
to annul the laws firmed up with an increase of 2 votes when the Court took up the motion for
reconsideration of the sixteen municipalities on March 31, 2009. The vote was 7-5-2.

But when on April 28, 2009 the Court acted on the sixteen municipalities’ second motion for
reconsideration, the vote resulted in a tie, 6-6-3. The Court was divided in its interpretation of this 6-6
result. One group argued that the failure of the minority to muster a majority vote had the effect of
maintaining the Court’s last ruling. Some argued, however, that since the Constitution required a
majority vote for declaring laws passed by Congress unconstitutional, the new voting restored the
constitutionality of the subject laws. When a re-voting took place on December 21, 2009 to clear up
the issue, the result shifted in favor of upholding the constitutionality of the laws of the sixteen
municipalities, 6-4-3 (2 vacancies), with the new majority voting to uphold the constitutionality of the
laws that converted the sixteen municipalities into cities.

But when the Court voted on the motion for reconsideration of the losing League of Cities on August
24, 2010, the majority shifted anew on a vote of 7-6-2. The sixteen municipalities filed a motion for
reconsideration of the new decision and voting took place on February 15, 2011, resulting in a vote
of 7-6-2 in favor of again upholding the constitutionality of the laws of the sixteen municipalities.

To repeat what I said in my concurring opinion in the League of Cities,3 those who say that the Court,
acting through its members, flipped-flopped in the League of Cities case should consider the
following:

One. The Justices did not on each occasion simply decide to change their minds. There were
pending motions for reconsideration in the case and the Justices had a duty to vote on them on the
dates the matters came up for decision.

The Court is no orchestra with its members playing one tune under the baton of a maestro. They
bring with them a diversity of views, which is what the Constitution prizes, for it is this diversity that
filters out blind or dictated conformity.

Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty stood by
their original positions. They never reconsidered their views. Only three did so and not on the same
occasion, showing no wholesale change of votes at any time.
Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the opposite
proposition upon the second vote (flip), and revert to his first position upon the third (flop). Not one of
the twenty-three Justices flipped-flopped.

Four. The three Justices who changed their votes did not do so in one direction. Justice Velasco
changed his vote from a vote to annul to a vote to uphold; Justice Villarama from a vote to uphold to
a vote to annul; and Justice Mendoza from a vote to annul to a vote to uphold. None of them flipped-
flopped since the three never changed their votes afterwards.

Notably, no one can dispute the right of a judge, acting on a motion for reconsideration that the
losing party files, to change his mind regarding the case. The rules are cognizant of the fact that
human judges could err and that it would merely be fair and right for them to correct their perceived
errors upon a motion for reconsideration. Even God, who had decided to destroy the Israelites for
worshipping a golden calf, reconsidered after Moses stood in the gap for them.4

Five. Evidently, the voting in the League of Cities is not a case of massive flip-flopping by the
Justices of the Court. Rather, it is a case of tiny shifts in the votes, occasioned by the consistently
slender margin that one view held over the other. This reflected the nearly even soundness of the
opposing advocacies of the contending sides.

Six. It did not help that in one year alone in 2009, seven Justices retired and were replaced by an
equal number. It is such that the resulting change in the combinations of minds produced multiple
shifts in the outcomes of the voting. No law or rule requires succeeding Justices to adopt the views
of their predecessors. Indeed, preordained conformity is anathema to a democratic system.

In this Dinagat Islands case the vote changed when, acting on the intervention of a third party with
genuine interest in the outcome of the case, the majority in the Court was persuaded to change its
mind and uphold the act of Congress in creating the province. The previous voting was too close and
it took the vote of just two Justices, changing their previous positions, to ensnare the victory from
those who oppose the conversion of the Dinagat Islands into a province.

Neither the Court nor its Justices flip-flopped in this case. They did not take one position, later
moved to the opposite position, and then reverted to the first. They merely exercised their right to
reconsider an erroneous ruling.

The charge of flip-flopping is unfair.

ROBERTO A. ABAD
Associate Justice

Footnotes

1
G.R, 176951, League of Cities, et al., vs. Commission on Elections, et al., April 12, 2011,

2
Supra.

3
Supra.
4
Exodus 32:7-14
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

ERNESTO B. FRANCISCO, JR.and JOSE G.R. No. 166910


MA. O. HIZON,
Petitioners, Present:

- versus - CORONA, CJ,


CARPIO,
TOLL REGULATORY BOARD, CARPIO-MORALES,
PHILIPPINE NATIONAL CONSTRUCTION VELASCO, JR.,
CORPORATION, MANILA NORTH NACHURA,
TOLLWAYS CORPORATION, BENPRES LEONARDO-DE
HOLDINGS CORPORATION, FIRST CASTRO,
PHILIPPINE INFRASTRUCTURE BRION,
DEVELOPMENT CORPORATION, PERALTA,
TOLLWAY MANAGEMENT BERSAMIN,
CORPORATION, PNCC SKYWAY DEL CASTILLO,
CORPORATION, CITRA METRO MANILA ABAD,*
TOLLWAYS CORPORATION and VILLARAMA, JR.,
HOPEWELL CROWN INFRASTRUCTURE, PEREZ,
INC., MENDOZA, and
Respondents. SERENO, JJ.
x-------------------------------------------x
HON. IMEE R. MARCOS, RONALDO B.
ZAMORA, CONSUMERS UNION OF THE
PHILIPPINES, INC., QUIRINO A.
MARQUINEZ, HON. LUIS A. ASISTIO,
HON. ERICO BASILIO A. FABIAN, HON.
RENATO “KA RENE” B. MAGTUBO, HON.
RODOLFO G. PLAZA, HON. ANTONIO M. G.R. No. 169917
SERAPIO, HON. EMMANUEL JOEL J.
VILLANUEVA, HON. ANIBAN NG MGA
MANGGAGAWA SA AGRIKULTURA
(AMA), INC., ANIBAN NG MGA
MAGSASAKA, MANGINGISDA AT
MANGGAGAWA SA AGRIKULTURA-
KATIPUNAN, INC., KAISAHAN NG MGA
MAGSASAKA SA AGRIKULTURA, INC.,
KILUSAN NG MANGAGAWANG
MAKABAYAN,
Petitioners,

- versus -

The REPUBLIC OF THE PHILIPPINES,


acting by and through the TOLL
REGULATORY BOARD, MANILA NORTH
TOLLWAYS CORPORATION, PHILIPPINE
NATIONAL CONSTRUCTION
CORPORATION, and FIRST PHILIPPINE
INFRASTRUCTURE DEVELOPMENT
CORP.,
Respondents.
x-------------------------------------------x
GISING KABATAAN MOVEMENT, INC.,
BARANGAY COUNCIL OF SAN
ANTONIO,MUNICIPALITY OF SANPEDRO,
LAGUNA [as Represented by COUNCILOR
CARLON G. AMBAYEC], and YOUNG
PROFESSIONALS AND ENTREPRENEURS
OF SAN PEDRO, LAGUNA
Petitioners,

- versus -

THE REPUBLIC OF THE PHILIPPINES,


acting through the TOLL REGULATORY
BOARD (TRB), PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION (PNCC), G.R. No. 173630
Respondents.
x-------------------------------------------x
THE REPUBLIC OF THE PHILIPPINES,
represented by the TOLL REGULATORY
BOARD,
Petitioner,
- versus -

YOUNG PROFESSIONALS AND


ENTREPRENEURS OF SAN PEDRO,
LAGUNA,
Respondent.

G.R. No. 183599

Promulgated:

October 19, 2010


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

DECISION

VELASCO, JR., J.:

Before us are four petitions; the first three are special civil actions under
Rule 65, assailing and seeking to nullify certain statutory provisions, presidential
actions and implementing orders, toll operation-related contracts and issuances on
the construction, maintenance and operation of the major tollway systems in
Luzon. The petitions likewise seek to restrain and permanently prohibit the
implementation of the allegedly illegal toll fee rate hikes for the use of the North
Luzon Expressway (“NLEX”), South Luzon Expressway (“SLEX”) and the South
Metro Manila Skyway (“SMMS”). The fourth, a petition for review under Rule 45,
seeks to annul and set aside the decision dated June 23, 2008 of the Regional Trial
Court (“RTC”) of Pasig, in SCA No. 3138-PSG, enjoining the original toll
operating franchisee from collecting toll fees in the SLEX.

By Resolution of March 20, 2007, the Court ordered the consolidation of the
first three petitions, docketed as G.R. Nos. 166910,
169917 and 173630, respectively. The fourth petition, G.R. No.
183599, would later be ordered consolidated with the earlier three petitions.

THE FACTS

The antecedent facts are as follows—


On March 31, 1977, then President Ferdinand E. Marcos issued Presidential
Decree No. (“P.D.”) 1112, authorizing the establishment of toll facilities on public
improvements.[1] This issuance, in its preamble, explicitly acknowledged “the huge
financial requirements” and the necessity of tapping “the resources of the private
sector” to implement the government’s infrastructure programs. In order to attract
private sector involvement, P.D. 1112 allowed “the collection of toll fees for the
use of certain public improvements that would allow a reasonable rate of return on
investments.” The same decree created the Toll Regulatory Board (“TRB”) and
invested it under Section 3 (a) (d) and (e) with the power to enter, for the Republic,
into contracts for the construction, maintenance and operation of tollways, grant
authority to operate a toll facility, issue therefor the necessary Toll Operation
Certificate (“TOC”) and fix initial toll rates, and, from time to time, adjust the
same after due notice and hearing.

On the same date, P.D. 1113 was issued, granting to the Philippine National
Construction Corporation (“PNCC”), then known as the Construction and
Development Corporation of the Philippines (“CDCP”), for a period of thirty years
from May 1977 – or up to May 2007 – a franchise to construct, maintain and
operate toll facilities in theNorth Luzon and South Luzon Expressways, with the
right to collect toll fees at such rates as the TRB may fix and/or authorize.
Particularly, Section 1 of P.D. 1113 delineates the coverage of the expressways
from Balintawak, Caloocan City to Carmen, Rosales, Pangasinan and from
Nichols, Pasay City to Lucena, Quezon. And because the franchise is not self-
executing, as it was in fact made subject, under Section 3 of P.D. 1113, to “such
conditions as may be imposed by the Board in an appropriate contract to be
executed for such purpose,” TRB and PNCC signed in October 1977, a Toll
Operation Agreement (“TOA”) on the North Luzon and South Luzon Tollways,
providing for the detailed terms and conditions for the construction, maintenance
and operation of the expressway.[2]

On December 22, 1983, P.D. 1894 was issued therein further granting PNCC
a franchise over the Metro Manila Expressway (“MMEX”), and the expanded and
delineated NLEX and SLEX. Particularly, PNCC was granted the “right, privilege
and authority to construct, maintain and operate any and all such extensions,
linkages or stretches, together with the toll facilities appurtenant thereto, from any
part of the North Luzon Expressway, South Luzon Expressway and/or Metro
Manila Expressway and/or to divert the original route and change the original
end-points of the North Luzon Expressway and/or South Luzon Expressway as may
be approved by the [TRB].”[3] Under Section 2 of P.D. 1894, “the franchise
granted the [MMEX] and all extensions, linkages, stretches and diversions after
the approval of the decree that may be constructed after the approval of this
decree [on December 22, 1983] shall likewise have a term of thirty (30) years,
commencing from the date of completion of the project.”

As expressly set out in P.D. 1113 and reiterated in P.D. 1894, PNCC may
sell or assign its franchise thereunder granted or cede the usufruct [4] thereof upon
the President’s approval.[5] This same provision on franchise transfer and cession
of usufruct is likewise found in P.D. 1112.[6]

Then came the 1987 Constitution with its franchise provision.[7]


In 1993, the Government Corporate Counsel (“GCC”), acting on PNCC’s
request, issued Opinion No. 224, s. 1993,[8] later affirmed by the Secretary of
Justice,[9] holding that PNCC may, subject to certain clearance and approval
requirements, enter into a joint venture (“JV”) agreement (“JVA”) with private
entities without going into public bidding in the selection of its JV
partners. PNCC’s query was evidently prompted by the need to seek out
alternative sources of financing for expanding and improving existing
expressways, and to link them to economic zones in the north and to the
CALABARZON area in the south.

MOU FOR THE CONSTRUCTION, REHABILITATION


AND EXPANSION OF EXPRESSWAYS
On February 8, 1994, the Department of Public Works and Highways
(“DPWH”), TRB, PNCC, Benpres Holdings Corporation (“Benpres”) and First
Philippine Holdings Corporation (“FPHC”), among other private and government
entities/agencies, executed a Memorandum of Understanding (“MOU”) envisaged
to open the door for the entry of private capital in the rehabilitation, expansion (to
Subic and Clark) and extension, as flagship projects, of the expressways north of
Manila, over which PNCC has a franchise. To carry out their undertakings under
the MOU, Benpres and FPHC formed, as their infrastructure holding arm, the First
Philippine Infrastructure and Development Corporation (“FPIDC”).

Consequent to the MOU execution, PNCC entered into financial and/or


technical JVAs with private entities/investors for the toll operation of its franchised
areas following what may be considered as a standard pattern, viz.: (a) after a JVA
is concluded and the usual government approval of the assignment by PNCC of the
usufruct in the franchise under P.D. 1113, as amended, secured, a new JV company
is specifically formed to undertake a defined toll road project; (b) the Republic of
the Philippines, through the TRB, as grantor, PNCC, as operator, and the new
corporation, as investor/concessionaire, with its lender, as the case may be, then
execute a Supplemental Toll Operation Agreement (“STOA”) to implement the
TOA previously issued; and (c) once the requisite STOA approval is given, project
prosecution starts and upon the completion of the toll road project or of a divisible
phase thereof, the TRB fixes or approves the initial toll rate after which, it passes a
board resolution prescribing the periodic toll rate adjustment.

The STOA defines the scope of the road project coverage, the terminal
date of the concession, and includes provisions on initial toll rate and a built-in
formula for adjustment of toll rates, investment recovery clauses and contract
termination in the event of the concessionaire’s, PNCC’s or TRB’s default, as the
case may be.

The following events or transactions, involving the personalities as


indicated, transpired with respect to the following projects:

THE SOUTH METRO MANILA SKYWAY (SMMS)


(BUENDIA – BICUTAN ELEVATED STRETCH) PROJECT
PNCC entered into a JV partnership arrangement with P.T. Citra, an
Indonesian company, and created, for the SMMS project, the Citra Metro Manila
Tollways Corporation (“CMMTC”).

On November 27, 1995, TRB, PNCC and CMMTC executed a STOA for
the SMMS project (“CITRA STOA”). And on April 7, 1996, then President Fidel
V. Ramos approved the CITRA STOA.

Phase I of the SMMS project – the Bicutan to Buendia elevated expressway


stretch – was completed in December 1998, and the consequent initial toll rates for
its use implemented a month after. On November 26, 2004, the TRB
passed Resolution No. 2004-53, approving the periodic toll rate adjustment for the
SMMS.

THE NLEX EXPANSION PROJECT (REHABILITATED AND WIDENED


NLEX, SUBIC EXPRESSWAY, CIRCUMFERENTIAL ROAD C-5)

In reply to the query of the then TRB Chairman, the Department of Justice
(“DOJ”) issued DOJ Opinion No. 79, s. of 1994, echoing an earlier opinion of the
GCC, that the TRB can implement the NLEX expansion project through a JV
scheme with private investors possessing the requisite technical and financial
capabilities.

On May 16, 1995, then President Ramos approved the assignment of


PNCC’s usufructuary rights as franchise holder to a JV company to be formed by
PNCC and FPIDC. PNCC and FPIDC would later ink a JVA for the rehabilitation
and modernization of the NLEX – referred in certain pleadings as the North Luzon
Tollway project.[10] The Manila North Tollways Corporation (“MNTC”) was
formed for the purpose.

On April 30, 1998, the Republic, through the TRB, PNCC and MNTC,
executed a STOA for the North Luzon Tollway project (“MNTC STOA”) in which
MNTC was authorized, inter alia, to subcontract the operation and maintenance of
the project, provided that the majority of the outstanding shares of the contractor
shall be owned by MNTC. The MNTC STOA covers three phases comprising of
ten segments, including the rehabilitated and widened NLEX, the Subic
Expressway and the circumferential Road C-5.[11] The STOA is to be effective for
thirty years, reckoned from the issuance of the toll operation permit for the last
completed phase or until December 31, 2030, whichever is earlier. The Office of
the President (“OP”) approved the STOA on June 15, 1998.
On August 2, 2000, pursuant to the MNTC STOA, the Tollways
Management Corporation (“TMC”)—formerly known as the Manila North
Tollways Operation and Maintenance Corporation—was created to undertake the
operation and maintenance of the NLEX tollway facilities, interchanges and related
works.

On January 27, 2005, the TRB issued Resolution No. 2005-04 approving the
initial authorized toll rates for the closed and flat toll systems applicable to the new
NLEX.

THE SOUTH LUZON EXPRESSWAY PROJECT (NICHOLS TO LUCENA CITY)

For the SLEX expansion project, PNCC and Hopewell Holdings Limited
(“HHL”), as JV partners, executed a Memorandum of Agreement
(“MOA”),[12] which eventually led to the formation of a JV company – Hopewell
Crown Infrastructure, Inc. (“HCII”), now MTD Manila Expressways, Inc.,
(“MTDME”). And pursuant to the PNCC-MTDME JVA, the South Luzon Tollway
Corporation (“SLTC”) and the Manila Toll Expressway Systems, Inc. (“MATES”)
were incorporated to undertake the financing, construction, operation and
maintenance of the resulting Project Toll Roads forming part of the SLEX. The
toll road projects are divisible toll sections or segments, each segment defined as to
its starting and end points and each with the corresponding distance coverage. The
proposed JVA, as later amended, between PNCC and MTDME was approved by
the OP on June 30, 2000.

Eventually, or on February 1, 2006, a STOA[13] for the financing, design,


construction, lane expansion and maintenance of the Project Toll Roads (PTR) of
the rehabilitated and improved SLEX was executed by and among the Republic,
PNCC, SLTC, as investor, and MATES, as operator. To be precise, the PTRs,
under the STOA, comprise and contemplated the full rehabilitation and/or roadway
widening of the following existing toll roads or facilities: PTR 1 – that portion of
the tollway commencing at the end of South MM Skyway to the Filinvest exit at
Alabang (1-242 km); PTR 2 – the tollway from Alabang to Calamba, Laguna
(27.28 km); PTR 3 – the tollway from Calamba to Sto. Tomas, Batangas (7.6 km)
and PTR 4 – the tollway from Sto. Tomas to Lucena City (54.27 km).[14]

Under Clause 6.03 of the STOA, the Operator, after substantially completing
a TPR, shall file an application for a Toll Operation Permit over the relevant
completed TPR or segment, which shall include a request for a review and
approval by the TRB of the calculation of the new current authorized toll rate.

G.R. NO. 166910

Petitioners Francisco and Hizon, as taxpayers and expressway users, seek to


nullify the various STOAs adverted to above and the corresponding TRB
resolutions, i.e. Res. Nos. 2004-53 and 2005-04, fixing initial rates and/or
approving periodic toll rate adjustments therefor. To the petitioners, the STOAs
and the toll rate-fixing resolutions violate the Constitution in that they veritably
impose on the public the burden of financing tollways by way of exorbitant fees
and thus depriving the public of property without due process. These STOAs are
also alleged to be infirm as they effectively awarded purported “build-operate-
transfer” (“BOT”) projects without public bidding in violation of the BOT Law
(R.A. 6957, as amended by R.A. 7718).

Petitioners likewise assail the constitutionality of Sections 3 (a) and (d) of


P.D. 1112 in relation to Section 8 (b) of P.D. 1894 insofar as they vested the TRB,
on one hand, toll operation awarding power while, on the other hand, granting it
also the power to issue, modify and promulgate toll rate charges. The TRB, so
petitioners bemoan, cannot be an awarding party of a TOA and, at the same time,
be the regulator of the tollway industry and an adjudicator of rate exactions
disputes.

Additionally, petitioners also seek to nullify certain provisions of P.D. 1113


and P.D. 1894, which uniformly grant the President the power to approve the
transfer or assignment of usufruct or the rights and privileges thereunder by the
tollway operator to third parties, particularly the transfer effected by PNCC to
MNTC. As argued, the authority to approve partakes of an exercise of legislative
power under Article VI, Section 1 of the Constitution.[15]
In the meantime, or on April 8, 2010, the TRB issued a Certificate of
Substantial Completion[16] with respect to PTR 1 (Alabang-Filinvest stretch) and
PTR 2 (Alabang-Calamba segments) of SLEX, signifying the completion of the
full rehabilitation/expansion of both segments and the linkages/interchanges in
between pursuant to the requirements of the corresponding STOA. TRB on even
date issued a Toll Operation Permit in favor of MATES over said PTRs 1 and
2.[17] Accordingly, upon due application, the TRB approved the publication of the
toll rate matrix for PTRs 1 and 2, the rate to take effect on June 30, 2010.[18] The
implementation of the published rate would, however, be postponed to August
2010.

On July 5, 2010, petitioner Francisco filed a Supplemental Petition with


prayer for the issuance of a temporary restraining order (“TRO”) and/or status
quo order focused on the impending collection of what was perceived to be toll
rate increases in the SLEX. The assailed adjustments were made public in a TRB
notice of toll rate increases for the SLEX from Alabang to Calamba on June 6,
2010, and were supposed to have been implemented on June 30, 2010. On August
13, 2010, the Court granted the desired TRO, enjoining the respondents in the
consolidated cases from implementing the toll rate increases in the SLEX.

In their Consolidated Comment/Opposition to the Supplemental Petition,


respondents SLTC et al., aver that the disputed rates are actually initial and
opening rates, not an increase or adjustment of the prevailing rate, for the new
expanded and rehabilitated SLEX. In fine, the new toll rates are, per SLTC, for a
new and upgraded facility, i.e. the aforementioned Project Toll Roads 1 and 2 put
up pursuant to the 2006 Republic-PNCC-SLTC-MATES STOA adverted to.

G.R. NO. 169917

While they raise, for the most part, the same issues articulated in G.R. No.
166910, such as the public bidding requirement, the power of the President to
approve the assignment of PNCC’s usufructuary rights to cover (as petitioners
Imee R. Marcos, et al., would stress) even the assignment of the expressway from
Balintawak to Tabang, the virtual amendment and extension of a statutory
franchise by way of administrative action (e.g., the execution of a STOA or
issuance of a TOC), petitioners in G.R. No. 169917 –some of them then and still
are members of the House of Representatives – have, as their main focus, the
North Luzon Tollway project and the agreements and devices entered in relation
therewith.

Petitioners also assail the MNTC STOA on the ground that it granted the
lenders (Asian Development Bank/World Bank) of MNTC, as project
concessionaire, the unrestricted rights to appoint a substitute entity to replace
MNTC in case of an MNTC Default before prepayment of the loans, while also
granting said lenders, in appropriate cases, the option to extend the “concession or
franchise” for a period not exceeding fifty years coinciding with the full payment
of the loans.

G.R. NO. 173630

Apart from those taken up in the other petitions for certiorari and
prohibition, petitioners, in G.R. No. 173630, whose members and constituents
allegedly traverse SLEX daily, aver that TRB ought to have applied the provisions
of R.A. 6957 [BOT Law] and R.A. 9184 [Government Procurement Reform Act],
which require public bidding for the prosecution of the SLEX project.

G.R. NO. 183599

CIVIL CASE – SCA NO. 3138-PSG BEFORE THE RTC

On September 14, 2007, the Young Professionals and Entrepreneurs of San


Pedro, Laguna (“YPES”), one of the petitioners in G.R. No. 173630, filed before
the RTC, Branch 155, in Pasig City, a special civil action for certiorari, etc.,
against the TRB, docketed as SCA No. 3138-PSG, containing practically identical
issues raised in G.R. No. 173630. Like its petition in G.R. No. 173630, YPES,
before the RTC, assailed and sought to nullify the April 27, 2007 TOC, which TRB
issued to PNCC inasmuch as the TOC worked to extend PNCC’s tollway operation
franchise for the SLEX. As YPES argued, only the Congress can extend the term
of PNCC’s franchise which expired on May 1, 2007.

RULING OF THE RTC IN SCA NO. 3138-PSG


By Decision[19] dated June 23, 2008, the RTC, for the main stated reason that
the authority to grant or renew franchises belongs only to Congress, granted YPES’
petition, disposing as follows:

ACCORDINGLY, the instant Petition for Certiorari, Prohibition and


Mandamus is hereby GRANTED and the questioned Toll Operation Certificate
(TOC) covering the [SLEX] issued by respondent TRB in April, 2007, is hereby
ordered ANNULLED and SET ASIDE.

FURTHER, respondent PNCC is hereby immediately PROHIBITED from


collecting toll fess along the SLEX facilities as it no longer has the power and
authority to do so.

FINALLY, as mandated under Section 9 of PD No. 1113, respondent


PNCC is hereby COMMANDED to turn over without further delay the physical
assets and facilities of the SLEX including improvements thereon, together with
the equipment and appurtenances directly related to their operations, without any
[20]
cost, to the Government through the Toll Regulatory Board x x x.

Thus, the instant petition for review on certiorari under Rule 45, filed by the
TRB on pure questions of law, docketed as G.R. No. 183599.

In their separate comments, public and private respondents uniformly seek


the dismissal of the three special civil actions on the threshold issue of the absence
of a justiciable case and lack of locus standi on the part of the petitioners
therein. Other grounds raised range from the impropriety of certiorari to nullify
toll operation agreements; the inapplicability of the public bidding rules in the
selection by PNCC of its JV partners and the authority of the President to approve
TOAs and the transfer of usufructuary rights. PNCC argues, in esse, that its
continuous toll operations did not constitute an extension of its franchise, its
authority to operate after the expiry date thereof in May 2007 being based on the
valid authority of TRB to issue TOC.

THE ISSUES

The principal consolidated but interrelated issues tendered before the Court,
most of which with constitutional undertones, may be reduced into six (6) and
formulated in the following wise: first, whether or not an actual case or
controversy exists and, relevantly, whether petitioners in the first three petitions
have locus standi; second, whether the TRB is vested with the power and authority
to grant what amounts to a franchise over tollway facilities; third, corollary to the
second, whether the TRB can enter into TOAs and, at the same time, promulgate
toll rates and rule on petitions for toll rate adjustments; fourth, whether the
President is duly authorized to approve contracts, inclusive of assignment of
contracts, entered into by the TRB relative to tollway operations; fifth, whether the
subject STOAs covering the NLEX, SLEX and SMMS and their respective
extensions, linkages, etc. are valid; sixth, whether a public bidding is required or
mandatory for these tollway projects.

Expressly prayed, if not subsumed, in the first three petitions, is to prohibit


TRB and its concessionaires from collecting toll fees along the Skyway and Luzon
Tollways.

PRELIMINARY ISSUES
EXISTENCE OF AN ACTUAL CONTROVERSY, ITS RIPENESS AND
THE LOCUS STANDI TO SUE

The power of judicial review can only be exercised in connection with


a bona fide controversy involving a statute, its implementation or a government
action.[21] Withal, courts will decline to pass upon constitutional issues through
advisory opinions, bereft as they are of authority to resolve hypothetical or moot
questions.[22] The limitation on the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of
power, to assure that the courts will not intrude into areas committed to the other
branches of government.[23]

In The Province of North Cotabato v. The Government of the Republic of


the Philippines Peace Panel on Ancestral Domain (GRP), the Court has
expounded anew on the concept of actual case or controversy and the requirement
of ripeness for judicial review, thus:
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There must be
a contrariety of legal rights x x x. The Court can decide the constitutionality of an
act x x x only when a proper case between opposing parties is submitted for
judicial determination.
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. x x x
[I]t is a prerequisite that something had 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 itself as a result
of the challenged action. He must show that he has sustained or is immediately in
[24]
danger of sustaining some direct injury as a result of the act complained of.

But even with the presence of an actual case or controversy, the Court may
refuse judicial review unless the constitutional question or the assailed illegal
government act is brought before it by a party who possesses what in Latin is
technically called locus standi or the standing to challenge it.[25] To have standing,
one must establish that he has a “personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its
enforcement.”[26] Particularly, he must show that (1) he has suffered some actual
or threatened injury as a result of the allegedly illegal conduct of the government;
(2) the injury is fairly traceable to the challenged action; and (3) the injury is likely
to be redressed by a favorable action.[27]

Petitions for certiorari and prohibition are, as here, appropriate remedies to


raise constitutional issues and to review and/or prohibit or nullify, when proper,
acts of legislative and executive officials.[28] The present petitions allege that then
President Ramos had exercised vis-à-vis an assignment of franchise, a function
legislative in character. As alleged, too, the TRB, in the guise of entering into
contracts or agreements with PNCC and other juridical entities, virtually enlarged,
modified to the core and/or extended the statutory franchise of PNCC, thereby
usurping a legislative prerogative. The usurpation came in the form of executing
the assailed STOAs and the issuance of TOCs. Grave abuse of discretion is also
laid on the doorstep of the TRB for its act of entering into these same contracts or
agreements without the required public bidding mandated by law, specifically the
BOT Law (R.A. 6957, as amended) and the Government Procurement Reform Act
(R.A. 9184).

In fine, the certiorari petitions impute on then President Ramos and the TRB,
the commission of acts that translate inter alia into usurpation of the congressional
authority to grant franchises and violation of extant statutes. The petitions make
a prima facie case for certiorari and prohibition; an actual case or controversy ripe
for judicial review exists. Verily, when an act of a branch of government is
seriously alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. In doing so, the judiciary
merely defends the sanctity of its duties and powers under the Constitution.[29]

In any case, the rule on standing is a matter of procedural technicality, which


may be relaxed when the subject in issue or the legal question to be resolved is of
transcendental importance to the public.[30] Hence, even absent any direct injury to
the suitor, the Court can relax the application of legal standing or altogether set it
aside for non-traditional plaintiffs, like ordinary citizens, when the public interest
so requires.[31] There is no doubt that individual petitioners, Marcos, et al., in G.R.
No. 169917, as then members of the House of Representatives, possess the
requisite legal standing since they assail acts of the executive they perceive to
injure the institution of Congress. On the other hand, petitioners Francisco, Hizon,
and the other petitioning associations, as taxpayers and/or mere users of the
tollways or representatives of such users, would ordinarily not be clothed with the
requisite standing. While this is so, the Court is wont to presently relax the rule
on locus standi owing primarily to the transcendental importance and the
paramount public interest involved in the implementation of the laws on
the Luzon tollways, a roadway complex used daily by hundreds of thousands of
motorists. What we said a century ago in Severino v. Governor General is just as
apropos today:
When the relief is sought merely for the protection of private rights, x x x
[the relator’s] right must clearly appear. On the other hand, when the question is
one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in
interest, and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest in the result,
it being sufficient to show that he is a citizen and as such interested in the
[32]
execution of the laws. (Words in bracket and emphasis added.)

Accordingly, We take cognizance of the present case on account of its


transcendental importance to the public.

SECOND ISSUE: TRB EMPOWERED TO GRANT AUTHORITY TO OPERATE


TOLL FACILITY /SYSTEM
It is abundantly clear that Sections 3 (a) and (e) of P.D. 1112 in relation to
Section 4 of P.D. 1894 have invested the TRB with sufficient power to grant a
qualified person or entity with authority to construct, maintain, and operate a toll
facility and to issue the corresponding toll operating permit or TOC.

Sections 3 (a) and (e) of P.D. 1112 and Section 4 of P.D. 1894 amply
provide the power to grant authority to operate toll facilities:

Section 3. Powers and Duties of the Board. The Board shall have in addition to
its general powers of administration the following powers and duties:

(a) Subject to the approval of the President of the Philippines, to enter into
contracts in behalf of the Republic of the Philippines with persons, natural or
juridical, for the construction, operation and maintenance of toll facilities such as
but not limited to national highways, roads, bridges, and public thoroughfares.
Said contract shall be open to citizens of the Philippines and/or to corporations or
associations qualified under the Constitution and authorized by law to engage in
toll operations;

xxxx

(e) To grant authority to operate a toll facility and to issue therefore the necessary
“Toll Operation Certificate” subject to such conditions as shall be imposed by the
Board including inter alia the following:

(1) That the Operator shall desist from collecting toll upon the expiration of
the Toll Operation Certificate.

(2) That the entire facility operated as a toll system including all operation
and maintenance equipment directly related thereto shall be turned over to
the government immediately upon the expiration of the Toll Operation
Certificate.

(3) That the toll operator shall not lease, transfer, grant the usufruct of, sell or
assign the rights or privileges acquired under the Toll Operation
Certificate to any person, firm, company, corporation or other commercial
or legal entity, nor merge with any other company or corporation
organized for the same purpose, without the prior approval of the
President of the Philippines. In the event of any valid transfer of the Toll
Operation Certificate, the Transferee shall be subject to all the conditions,
terms, restrictions and limitations of this Decree as fully and completely
and to the same extent as if the Toll Operation Certificate has been granted
to the same person, firm, company, corporation or other commercial or
legal entity.
(4) That in time of war, rebellion, public peril, emergency, calamity, disaster
or disturbance of peace and order, the President of the Philippines may
cause the total or partial closing of the toll facility or order to take over
thereof by the Government without prejudice to the payment of just
compensation.

(5) That no guarantee, Certificate of Indebtedness, collateral, securities, or


bonds shall be issued by any government agency or government-owned or
controlled corporation on any financing program of the toll operator in
connection with his undertaking under the Toll Operation Certificate.

(6) The Toll Operation Certificate may be amended, modified or revoked


whenever the public interest so requires.

(a) The Board shall promulgate rules and regulations governing the
procedures for the grant of Toll Certificates. The rights and privileges
of a grantee under a Toll Operation Certificate shall be defined by the
Board.

(b) To issue rules and regulations to carry out the purposes of this Decree.

SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and


supervision over the GRANTEE with respect to the Expressways, the toll
facilities necessarily appurtenant thereto and, subject to the provisions of Section
8 and 9 hereof, the toll that the GRANTEE will charge the users thereof.

By explicit provision of law, the TRB was given the power to grant
administrative franchise for toll facility projects.

The concerned petitioners would argue, however, that PNCC’s [then


CDCP’s] franchise, as toll operator, was granted via P.D. 1113, on the same day
P.D. 1112, creating the TRB, was issued. It is thus pointed out that P.D. 1112
could not have plausibly granted the TRB with the power and jurisdiction to issue
a similar franchise. Pushing the point, they maintain that only Congress has, under
the 1987 Constitution, the exclusive prerogative to grant franchise to operate
public utilities.

We are unable to agree with petitioners’ stance and their undue reliance
on Article XII, Section 11 of the Constitution, which states that:
SEC. 11. No franchise, certificate, or any other form of authorization for
the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens,
nor shall such franchise, certificate, or authorization be exclusive in character or
for a longer period than fifty years. Neither shall any such franchise or right be
granted except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good so requires x x x.

The limiting thrust of the foregoing constitutional provision on the grant of


franchise or other forms of authorization to operate public utilities may, in context,
be stated as follows: (a) the grant shall be made only in favor of qualified Filipino
citizens or corporations; (b) Congress can impair the obligation of franchises, as
contracts; and (c) no such authorization shall be exclusive or exceed fifty years.

A franchise is basically a legislative grant of a special privilege to a


person.[33] Particularly, the term, franchise, “includes not only authorizations
issuing directly from Congress in the form of statute, but also those granted by
administrative agencies to which the power to grant franchise has been delegated
by Congress.”[34] The power to authorize and control a public utility is admittedly
a prerogative that stems from the Legislature. Any suggestion, however, that only
Congress has the authority to grant a public utility franchise is less than
accurate. As stressed in Albano v. Reyes—a case decided under the aegis of the
1987 Constitution—there is nothing in the Constitution remotely indicating the
necessity of a congressional franchise before “each and every public utility may
operate,” thus:

That the Constitution provides x x x that the issuance of a franchise,


certificate or other form of authorization for the operation of a public utility shall
be subject to amendment, alteration or repeal by Congress does not necessarily
imply x x x that only Congress has the power to grant such
authorization. Our statute books are replete with laws granting specified
agencies in the Executive Branch the power to issue such authorization for
[35]
certain classes of public utilities. (Emphasis ours.)

In such a case, therefore, a special franchise directly emanating from


Congress is not necessary if the law already specifically authorizes an
administrative body to grant a franchise or to award a contract.[36] This is the same
view espoused by the Secretary of Justice in his opinion dated January 9, 2006,
when he stated:

That the administrative agencies may be vested with the authority to grant
administrative franchises or concessions over the operation of public utilities
under their respective jurisdiction and regulation, without need of the grant of a
separate legislative franchise, has been upheld by the Supreme Court x x x.[37]

Under the 1987 Constitution, Congress has an explicit authority to grant a


public utility franchise. However, it may validly delegate its legislative authority,
under the power of subordinate legislation,[38] to issue franchises of certain public
utilities to some administrative agencies. In Kilusang Mayo Uno Labor Center v.
Garcia, Jr., We explained the reason for the validity of subordinate legislation,
thus:

Such delegation of legislative power to an administrative agency is


permitted in order to adapt to the increasing complexity of modern life. As
subjects for governmental regulation multiply, so does the difficulty of
administering the laws. Hence, specialization even in legislation has become
necessary.[39] (Emphasis ours.)

As aptly pointed out by the TRB and other private respondents, the Land
Transportation Franchising and Regulatory Board (“LTFRB”), the Civil
Aeronautics Board (“CAB”), the National Telecommunications Commission
(“NTC”), and the Philippine Ports Authority (“PPA”), to name a few, have been
such delegates. The TRB may very well be added to the growing list, having been
statutorily endowed, as earlier indicated, the power to grant to qualified persons,
authority to construct road projects and operate thereon toll facilities. Such grant,
as evidenced by the corresponding TOC or set out in a TOA, “may be amended,
modified, or revoked [by the TRB] whenever the public interest so requires.”[40]

In Philippine Airlines, Inc. v. Civil Aeronautics Board,[41] the Court


reiterated its holding in Albano that the CAB, like the PPA, has sufficient statutory
powers under R.A. 776 to issue a Certificate of Public Convenience and Necessity,
or Temporary Operating Permit to a domestic air transport operator who, although
not possessing a legislative franchise, meets all the other requirements prescribed
by law. We held therein that “there is nothing in the law nor in the Constitution
which indicates that a legislative franchise is an indispensable requirement for an
entity to operate as a domestic air transport operator.”[42] We further explicated:
Congress has granted certain administrative agencies the power to
grant licenses for, or to authorize the operation of certain public
utilities. With the growing complexity of modern life, the multiplication of the
subjects of governmental regulation, and the increased difficulty of administering
the laws, there is a constantly growing tendency towards the delegation of greater
powers by the legislature, and towards the approval of the practice by the
courts. It is generally recognized that a franchise may be derived indirectly
from the state through a duly designated agency, and to this extent, even the
power to grant franchises has frequently been delegated, even to agencies
other than those of a legislative nature. In pursuance of this, it has been held
that privileges conferred by grant by local authorities as agents for the state
constitute as much a legislative franchise as though the grant had been made
by an act of the Legislature.[43] (Emphasis ours.)

The validity of the delegation by Congress of its franchising prerogative is


beyond cavil. So it was that in Tatad v. Secretary of the Department of
Energy,[44] We again ruled that the delegation of legislative power to administrative
agencies is valid. In the instant case, the certiorari petitioners assume and harp on
the lack of authority of PNCC to continue with its NLEX, SLEX, MMEX
operations, in joint venture with private investors, after the lapse of its P.D. 1113
franchise. None of these petitioners seemed to have taken due stock of and
appreciated the valid delegation of the appropriate power to TRB under P.D. 1112,
as enlarged in P.D. 1894. To be sure, a franchise may be derived indirectly from
the state through a duly designated agency, and to this extent, the power to grant
franchises has frequently been delegated, even to agencies other than those of a
legislative nature.[45] Consequently, it has been held that privileges conferred by
grant by administrative agencies as agents for the state constitute as much a
legislative franchise as though the grant had been made by an act of the
Legislature.[46]

While it may be, as held in Strategic Alliance Development Corporation v.


Radstock Securities Limited,[47] that PNCC’s P.D. 1113 franchise had already
expired effective May 1, 2007, this fact of expiration did not, however, carry with
it the cancellation of PNCC’s authority and that of its JV partners granted under
P.D. 1112 in relation to Section 1 of P.D. 1894 to construct, operate and maintain
“any and all such extensions, linkages or stretches, together with the toll facilities
appurtenant thereto, from any part of the North Luzon Expressway, South Luzon
Expressway and/or Metro Manila Expressway and/or to divert the original route
and change the original end-points of the [NLEX]and/or [SLEX] as may be
approved by the [TRB]. And to highlight the point, the succeeding Section 2 of
P.D. 1894 specifically provides that the franchise for the extension and toll road
projects constructed after the approval of P.D. 1894 shall be thirty years, counted
from project completion. Indeed, prior to the expiration of PNCC’s original
franchise in May 2007, the TRB, in the exercise of its special powers under P.D.
1112, signed supplemental TOAs with PNCC and its JV partners. These STOAs
covered the expansion and rehabilitation of NLEX and SLEX, as the case may be,
and/or the construction, operation and maintenance of toll road projects
contemplated in P.D.1894. And there can be no denying that the corresponding toll
operation permits have been issued.

In fine, the STOAs[48] TRB entered with PNCC and its JV partners had the
effect of granting authorities to construct, operate and maintain toll facilities, but
with the injection of additional private sector investments consistent with the intent
of P.D. Nos. 1112, 1113 and 1894.[49] The execution of these STOAs came in
1995, 1998 and 2006, or before the expiration of PNCC’s original franchise on
May 1, 2007. In accordance with applicable laws, these transactions have actually
been authorized and approved by the President of the Philippines.[50] And as a
measure to ensure the legality of the said transactions and in line with due
diligence requirements, a review thereof was secured from the GCC and the DOJ,
prior to their execution.

Inasmuch as its charter empowered the TRB to authorize the PNCC and like
entities to maintain and operate toll facilities, it may be stated as a corollary that
the TRB, subject to certain qualifications, infra, can alter the conditions of such
authorization. Well settled is the rule that a legislative franchise cannot be
modified or amended by an administrative body with general delegated powers to
grant authorities or franchises. However, in the instant case, the law granting a
direct franchise to PNCC[51] evidently and specifically conferred upon the TRB the
power to impose conditions in an appropriate contract.[52] And to reiterate, Section
3 of P.D. 1113 provides that “[t]his [PNCC] franchise is granted subject to such
conditions as may be imposed by the [TRB] in an appropriate contract to be
executed for this purpose, and with the understanding and upon the condition
that it shall be subject to amendment, alteration or repeal when public
interest so requires.”[53] A similarly worded proviso is found in Section 6 of P.D.
1894. It is in this light that the TRB entered into the subject STOAs in order to
allow the infusion of additional investments in the subject infrastructure
projects. Prior to the expiration of PNCC’s franchise on May 1, 2007, the STOAs
merely imposed additional conditionalities, or as aptly pointed out by SLTC et al.,
obviously having in mind par. 16.06 of its STOA with TRB, [54] served as
supplement, to the existing TOA of PNCC with TRB. We have carefully gone
over the different STOAs and discovered that the tollway projects covered thereby
were all undertaken under the P.D. 1113 franchise of PNCC. And it cannot be
over-emphasized that the respective STOAs of MNTC and SLTC each contain
provisions addressing the eventual expiration of PNCC’s P.D. 1113 franchise and
authorizing, thru the issuance by the TRB of a TOC, the implementation of a given
toll project even after May 1, 2007. Thus:

MNTC STOA

2.6 CONCESSION PERIOD. In order to sustain the financial viability and


integrity of the Project, GRANTOR [TRB] hereby grants MNTC the
CONCESSION for the PROJECT ROADS for a period commencing upon the
date that this [STOA] comes into effect under Clause 4.1 until 31 December 2030
or thirty years after the issuance of the corresponding TOLL OPERATION
PERMIT for the last completed phase…. Accordingly, unless the PNCC
FRANCHISE is further extended beyond its expiry on 01 May 2007, GRANTOR
undertakes to issue the necessary [TOC] for the rehabilitated and refurbished
[NLEX] six months prior to the expiry of the PNCC FRANCHISE on 01 May
2007….

SLTC STOA
2.03 Authority of Investor and Operator to Undertake the Project

(1) The GRANTOR [TRB] has determined that the Project Toll Roads are
within the existing SLEX and are thus covered by the PNCC Franchise that
is due to expire on May 1, 2007. PNCC has committed to exert its best
efforts to obtain an extension x x x It is understood and agreed that in the
event the PNCC Franchise is not renewed beyond the said expiry date, this
[STOA] and the Concession granted x x x will stand in place of the PNCC
Franchise and serve as a new concession, or authority, pursuant to Section
3 (a) of the TRB Charter, for the Investor to undertake the Project and for
the Operator to Operate and Maintain the Project Toll Roads immediately
upon the expiration of the PNCC Franchise, without need of the execution
x x x of any other document to effect the same.
(2) x x x in the event it is subsequently decreed by competent authority that
the issuance by the Grantor of a [TOC] is necessary x x x the Grantor shall
x x x cause the TRB x x x to issue such [TOC] in favor of the Operator,
embodying the terms and conditions of this Agreement.

The foregoing notwithstanding, there are to be sure certain aspects in


PNCC’s legislative franchise beyond the altering reach of TRB. We refer to the
coverage area of the tollways and the expiry date of PNCC’s original franchise,
which is May 1, 2007, as expressly stated under Sections 1 and 2 of P.D. 1894,
respectively. The fact that these two items were specifically and expressly defined
by law, i.e. P.D. 1113, indicates an intention that any alteration, modification or
repeal thereof should only be done through the same medium. We said as much
in Radstock, thus: “[T]he term of the x x x franchise, ‘which is 30 years from 1
May 1977, shall remain the same,’ as expressly provided in the first sentence of
x x x Section 2 of P.D. 1894.”[55] It is likewise worth noting what We further held
in that case:

The TRB does not have the power to give back to PNCC the toll assets
and facilities which were automatically turned over to the Government, by
operation of law, upon the expiration of the franchise of the PNCC on 1 May
2007. Whatever power the TRB may have to grant authority to operate a toll
facility or to issue a “[TOC],” such power does not obviously include the
authority to transfer back to PNCC ownership of National Government assets, like
the toll assets and facilities, which have become National Government property
upon the expiry of PNCC’s franchise x x x.[56] (Emphasis in the original.)

Verily, upon the expiration of PNCC’s legislative franchise on May 1, 2007,


the new authorities to construct, maintain and operate the subject tollways and toll
facilities granted by the TRB pursuant to the validly executed STOAs and TOCs,
shall begin to operate and be treated as administrative franchises or authorities.
Pursuant to Section 3 (e) P.D. 1112, TRB possesses the power and duty, inter
alia to:
x x x grant authority to operate a toll facility and to issue therefore the necessary
“Toll Operation Certificate” subject to such conditions as shall be imposed by the
[TRB] including inter alia x x x.
This is likewise consistent with the position of the Secretary of Justice in
Opinion No. 122 on November 24, 1995,[57] thus:

TRB has no authority to extend the legislative franchise of PNCC over the
existing NSLE (North and South Luzon Expressways). However, TRB is not
precluded under Section 3 (e) of P.D. No. 1112 (TRB Charter) to grant PNCC and
its joint venture partner the authority to operate the existing toll facility of the
NSLE and to issue therefore the necessary “Toll Operation Certificate x x x.
It should be noted that the existing franchise of PNCC over the NSLE, which will
expire on May 1, 2007, gives it the “right, privilege and authority to construct,
maintain and operate” the NSLE. The Toll Operation Certificate which TRB
may issue to the PNCC and its joint venture partner after the expiration of
its franchise on May 1, 2007 is an entirely new authorization, this time for the
operation and maintenance of the NSLE x x x. In other words, the right of
PNCC and its joint venture partner, after May 7, 2007 [sic] to operate and
maintain the existing NSLE will no longer be founded on its legislative
franchise which is not thereby extended, but on the new authorization to be
granted by the TRB pursuant to Section 3 (e), above quoted, of P.D. No.
1112. (Emphasis ours.)

The same opinion was thereafter made by the Secretary of Justice on


January 9, 2006, in Opinion No. 1,[58] stating that:

The existing franchise of PNCC over the NSLE, which will expire on May
1, 2007, gives it the “right, privilege and authority to construct, maintain and
operate the NSLE.” The Toll Operation Certificate which the TRB may issue to
the PNCC and its joint venture partner after the expiration of its franchise on May
1, 2007 is an entirely new authorization, this time for the operation and
maintenance of the NSLE…. [T]he right of PNCC and its joint venture partner,
after May 1, 2007, to operate and maintain the existing NSLE will no longer be
founded on its legislative franchise which is not thereby extended, but on the new
authorization to be granted by the TRB pursuant to Section 3 (e) of PD No. 1112.

It appears therefore, that the effect of the STOA is not to extend the
Franchise of PNCC, but rather, to grant a new Concession over the SLEX Project
and the OMCo., entities which are separate and distinct from PNCC. While
initially, the authority of SLTC and OMCo. to enter into the STOA with the TRB
and thereby become grantees of the Concession, will stem from and be based on
the JVA and the assignment by PNCC to the OMCo. of the Usufruct in the
Franchise, we submit that upon the execution by SLTC and the TRB of the
STOA, the right to the Concession will emanate from the STOA itself and from
the authority of the TRB under Section 3 (a) of the TRB Charter. Such being the
case, the expiration of the Franchise on 1 May 2007, since such Concession is an
entirely new and distinct concession from the Franchise and is, as stated, granted
to entities other than PNCC.

Finally, with regards (sic) the authority of the TRB this Office in Secretary
of Justice Opinion No. 92, s. 2000, stated that:

“Suffice it to say that official acts of the President enjoy full faith and
confidence of the Government of the Republic of the Philippines which he
represents. Furthermore, considering that the queries raised herein relates to the
exercise by the TRB of its regulatory powers over toll road project, the same
falls squarely within the exclusive jurisdiction of TRB pursuant to P.D. No.
1112. Consequently, it is, therefore, solely within TRB’s prerogative and
determination as to what rule shall govern and is made applicable to a specific
toll road project proposal.”

The STOA is an explicit grant of the Concession by the Republic of


the Philippines, through the TRB pursuant to P.D. (No.) 1112 and as approved
by the President xxx. The foregoing grant is in full accord with the provisions
of P.D. (No.) 1112 which authorizes TRB to enter into contracts on behalf of the
Republic of the Philippines for the construction, operation and maintenance of
toll facilities. Such being the case, we opine that no other legal requirement is
necessary to make the STOA effective of to confirm MNTC’s (In this case,
SLTC and the OMCO) rights and privileges granted therein.” (Emphasis in the
original.)

Considering, however, that all toll assets and facilities pertaining to PNCC
pursuant to its P.D. 1113 franchise are deemed to have already been turned over to
the National Government on May 1, 2007,[59] whatever participation that PNCC
may have in the new authorities to construct, maintain and operate the subject
tollways, shall be limited to doing the same in trust for the National
Government. In Radstock, the Court held that “[w]ith the expiration of PNCC’s
franchise, [its] assets and facilities … were automatically turned over, by operation
of law, to the government at no cost.”[60] The Court went on further to state that
the Government’s ownership of PNCC’s toll assets inevitably resulted in its
owning too of the toll fees and the net income derived, after May 1, 2007, from the
toll assets and facilities.[61] But as We have earlier discussed, the tollways and toll
facilities should remain functioning in accordance with the validly executed
STOAs and TOCs. However, PNCC’s assets and facilities, or, in short, its very
share/participation in the JVAs and the STOAs, inclusive of its percentage share in
the toll fees collected by the JV companies currently operating the tollways shall
likewise automatically accrue to the Government.
In fine, petitioners’ claim about PNCC’s franchise being amenable to an
amendment only by an act of Congress, or, what practically amounts to the same
thing, that the TRB is without authority at all to modify the terms and conditions of
PNCC’s franchise, i.e. by amending its TOA/TOC, has to be rejected. Their
lament then that the TRB, through the instrumentality of mere contracts and an
administrative operating certificate, or STOAs and TOC, to be precise, effectively,
but invalidly amended PNCC legislative franchise, are untenable. For, the bottom
line is, the TRB has, through the interplay of the pertinent provisions of P.D. Nos.
1112, 1113 and 1894, the power to grant the authority to construct and operate toll
road projects and toll facilities by way of a TOA and the corresponding
TOC. What is otherwise a legislative power to grant or renew a franchise is not
usurped by the issuance by the TRB of a TOC. But to emphasize, the case of the
TRB is quite peculiarly unique as the special law conferring the legislative
franchise likewise vested the TRB with the power to impose conditions on the
franchise, albeit in a limited sense, by excluding from the investiture the power to
amend or modify the stated lifetime of the franchise, its coverage and the
ownership arrangement of the toll assets following the expiration of the legislative
franchise.[62]

At this juncture, the Court wishes to express the observation that P.D. Nos.
1112, 1113 and 1894, as couched and considered as a package, very well endowed
the TRB with extraordinary powers. For, subject to well-defined limitations and
approval requirements, the TRB can, by way of STOAs, allow and authorize, as it
has allowed and authorized, a legislative franchisee, PNCC, to share its concession
with another entity or JV partners, the authorization effectively covering periods
beyond May 2007. However, this unpalatable reality, a leftover of the martial law
regime, presents issues on the merits and the wisdom of the economic programs,
which properly belong to the legislature or the executive to address. The TRB is
not precluded from granting PNCC and its joint venture partners authority, through
a TOC for a period following the term of the proposed SMMS, with the said TOC
serving as an entirely new authorization upon the expiration of PNCC’s franchise
on May 1, 2007. In short, after May 1, 2007, the operation and maintenance of the
NLEX and the other subject tollways will no longer be founded on P.D. 1113 or
portions of P.D. 1894 (PNCC’s original franchise) but on an entirely new
authorization, i.e. a TOC, granted by the TRB pursuant to its statutory authority
under Sections 3 (a) and (e) of P.D. 1112.
Likewise needing no extended belaboring, in the light of the foregoing
dispositions, is the untenable holding of the RTC in SCA No. 3138-PSG that the
TRB is without power to issue a TOC to PNCC, amend or renew its authority over
the SLEX tollways without separate legislative enactment. And lest it be
overlooked, the TRB may validly issue an entirely new authorization to a JV
company after the lapse of PNCC’s franchise under P.D. 1113. Its thirty-year
concession under P.D. 1894, however, does not have the quality of definiteness as
to its start, as by the terms of the issuance, it commences and is to be counted
“from the date of approval of the project,” the term project obviously referring to
“Metro Manila Expressways and all extensions, linkages, stretches and diversions
refurbishing and rehabilitation of the existing NLEX and SLEX constructed after
the approval of the decree in December 1983.” The suggestion, therefore, of the
petitioners in G.R. No. 169917, citing a 1989 Court of Appeals (“CA”) decision in
CA-G.R. 13235 (Republic v. Guerrero, et al.), that the Balintawak to Tabang
portion of the expressway no longer forms part of PNCC’s franchise and,
therefore, PNCC is without any right to assign the same to MNTC via a JVA, is
specious. Firstly, in its Decision[63] in G.R. No. 89557, a certiorari proceeding
commenced by PNCC to nullify the CA decision adverted to, the Court approved a
compromise agreement, which referred to (1) the PNCC’s authority to collect toll
and maintenance fees; and (2) the supervision, approval and control by the
DPWH[64] of the construction of additional facilities, on the questioned portion of
the NLEX.[65] And still in another Decision,[66] the Court ruled that the Balintawak
to Tabang stretch was recognized as “part of the franchise of, or otherwise restored
as toll facilities to be operated by x x x PNCC.”[67] Once stamped with
judicial imprimatur, and unless amended, modified or revoked by the parties, a
compromise agreement becomes more than a mere binding contract; as thus
sanctioned, the agreement constitutes the court’s determination of the controversy,
enjoining the parties to faithfully comply thereto.[68] Verily, like any other
judgment, it has the effect and authority of res judicata.[69]

At any rate, the PNCC was likewise granted temporary or interim authority
by the TRB to operate the SLEX,[70] to ensure the continued development,
operations and progress of the projects. We have ruled in Oroport Cargohandling
Services, Inc. v. Phividec Industrial Authority that an administrative agency vested
by law with the power to grant franchises or authority to operate can validly grant
the same in the interim when it is necessary, temporary and beneficial to the
public.[71] The grant by the TRB to PNCC as interim operator of the SLEX was
certainly intended to guarantee the continued operation of the said tollway facility,
and to ensure the want of any delay and inconvenience to the motoring public.

All given, the cited CA holding is not a binding precedent. The time
limitation on PNCC’s franchise under either P.D. 1113 or P.D. 1894 does not
detract from or diminish the TRB’s delegated authority under P.D. 1112 to enter
into separate toll concessions apart and distinct from PNCC’s original legislative
franchise.

THIRD ISSUE: TRB’S POWER TO ENTER INTO CONTRACTS; ISSUE,


MODIFY AND PROMULGATE TOLL RATES; AND TO RULE ON PETITIONS
RELATIVE TO TOLL RATES LEVEL AND INCREASES VALID

The petitioners in the special civil actions cases would have the Court
declare as invalid (a) Section 3 (a) and (d) of P.D. 1112 (which accord the TRB, on
one hand, the power to enter into contracts for the construction, and operation of
toll facilities, while, on the other hand, granting it the power to issue and
promulgate toll rates) and (b) Section 8 (b) of P.D. 1894 (granting TRB
adjudicatory jurisdiction over matters involving toll rate movements). As
submitted, granting the TRB the power to award toll contracts is inconsistent with
its quasi-judicial function of adjudicating petitions for initial toll and periodic toll
rate adjustments. There cannot, so petitioners would postulate, be impartiality in
such a situation.

The assailed provisions of P.D. 1112 and P.D. 1894 read:

P.D. 1112
Section 3. Powers and Duties of the Board. The Board shall have in addition to
its general powers of administration the following powers and duties:

(a) Subject to the approval of the President of the Philippines, to enter into
contracts in behalf of the Republic of the Philippines with persons, natural or
juridical, for the construction, operation and maintenance of toll facilities such as
but not limited to national highways, roads, bridges, and public thoroughfares.
Said contract shall be open to citizens of the Philippines and/or to corporations or
associations qualified under the Constitution and authorized by law to engage in
toll operations;

(d) Issue, modify and promulgate from time to time the rates of toll that will be
charged the direct users of toll facilities and upon notice and hearing, to approve
or disapprove petitions for the increase thereof. Decisions of the Board on
petitions for the increase of toll rate shall be appealable to the Office of the
President within ten (10) days from the promulgation thereof. Such appeal shall
not suspend the imposition of the new rates, provided however, that pending the
resolution of the appeal, the petitioner for increased rates in such case shall
deposit in a trust fund such amounts as may be necessary to reimburse toll payers
affected in case a reversal of the decision. (Emphasis ours.)

P.D. 1894
SECTION 8. x x x

(b) For the Metro Manila Expressway and such extensions, linkages,
stretches and diversions of the Expressways which may henceforth be
constructed, maintained and operated by the GRANTEE,the GRANTEE shall
collect toll at such rates as shall initially be approved by the Toll Regulatory
Board. The Toll Regulatory Board shall have the authority to approve such initial
toll rates without the necessity of any notice and hearing, except as provided in
the immediately succeeding paragraph of this Section. For such purpose, the
GRANTEE shall submit for the approval of the Toll Regulatory Board the toll
proposed to be charged the users. After approval of the toll rate(s) by the Toll
Regulatory Board and publication thereof by the GRANTEE once in a newspaper
of general circulation, the toll shall immediately be enforceable and collectible
upon opening of the expressway to traffic use.

Any interested Expressways users shall have the right to file, within a
period of ninety (90) days after the date of publication of the initial toll rate, a
petition with the Toll Regulatory Board for a review of the initial toll rate;
provided, however, that the filing of such petition and the pendency of the
resolution thereof shall not suspend the enforceability and collection of the toll in
question. The Toll Regulatory Board, at a public hearing called for the purpose
after due notice, shall then conduct a review of the initial toll shall be appealable
(sic) to the Office of the President within ten (10) days from the promulgation
thereof. The GRANTEE may be required to post a bond in such amount and from
such surety or sureties and under such terms and conditions as the Toll Regulatory
Board shall fix in case of any petition for review of, or appeal from, decisions of
the Toll Regulatory Board.

In case it is finally determined, after a review by the Toll Regulatory


Board or appeal therefrom, that the GRANTEE is not entitled, in whole or in part,
to the initial toll, the GRANTEE shall deposit in the escrow account the amount
collected under the approved initial toll fee and such amount shall be refunded to
Expressways users who had paid said toll in accordance with the procedure as
may be prescribed or promulgated by the Toll Regulatory Board. (Emphasis
ours.)

The petitioners are indulging in gratuitous, if not unfair, conclusion as to the


capacity of the TRB to act as a fair and objective tribunal on matters of toll fee
fixing.

Administrative bodies have expertise in specific matters within the purview


of their respective jurisdictions. Accordingly, the law concedes to them the power
to promulgate implementing rules and regulations (“IRR”) to carry out declared
statutory policies – provided that the IRR conforms to the terms and standards
prescribed by that statute.[72]

The Court does not perceive an irreconcilable clash in the enumerated


TRB’s statutory powers, such that the exercise of one negates another. The
ascription of impartiality on the part of the TRB cannot, under the premises, be
accorded cogency. Petitioners have not shown that the TRB lacks the expertise,
competence and capacity to implement its mandate of balancing the interests of the
toll-paying motoring public and the imperative of allowing the concessionaires to
recoup their investment with reasonable profits. As it were, Section 9 of P.D. 1894
provides a parametric formula for adjustment of toll rates that takes into account
the Peso-US Dollar exchange rate, interest rate and construction materials price
index, among other verifiable and quantifiable variables.

While not determinative of the issue immediately at hand, the grant to and
the exercise by an administrative agency of regulating and allowing the operation
of public utilities and, at the same time, fixing the fees that they may charge their
customers is now commonplace. It must be presumed that the Congress, in creating
said agencies and clothing them with both adjudicative powers and contract-
making prerogatives, must have carefully studied such dual authority and found the
same not breaching any constitutional principle or concept.[73] So must it be for
P.D. Nos. 1112 and 1894.

The Court can take judicial cognizance of the exercise by the LTFRB and
NTC – both spin-off agencies of the now defunct Public Service Commission – of
similar concurrent powers. The LTFRB, under Executive Order No. (“E.O.”)
202,[74] series of 1987, is empowered,[75] among others, to regulate the operation of
public utilities or “for hire” vehicles and to grant franchises or certificates of public
convenience (“CPC”); and to fix rates or fares, to approve petitions for fare rate
increases and to resolve oppositions to such petitions.

The NTC, on the other hand, has been granted similar powers of granting
franchises, allocating areas of operations, rate-fixing and to rule on petitions for
rate increases under E.O. 546,[76] s. of 1979.

The Energy Regulatory Commission (“ERC”) likewise enjoys on the one


hand, the power (a) to grant, modify or revoke an authority to operate facilities
used in the generation of electricity, and on the other, (b) to determine, fix and
approve rates and tariffs of transmission, and distribution retail wheeling charges
and tariffs of franchise electric utilities and all electric power rates including that
which is charged to end-users.[77] In Chamber of Real Estate and Builders’
Association, Inc. v. ERC, We even categorically stated that the ERC is a “quasi-
judicial and quasi-legislative regulatory body created under Section 38 of the
EPIRA, [and] x x x an administrative agency vested with broad regulatory and
monitoring functions over the Philippine electric industry to ensure its successful
restructuring and modernization x x x.”[78]

To summarize, the fact that an administrative agency is exercising its


administrative or executive functions (such as the granting of franchises or
awarding of contracts) and at the same time exercising its quasi-legislative (e.g.
rule-making) and/or quasi-judicial functions (e.g. rate-fixing), does not support a
finding of a violation of due process or the Constitution. In C.T. Torres
Enterprises, Inc. v. Hibionada,[79] We explained the rationale, thus:

It is by now commonplace learning that many administrative agencies


exercise and perform adjudicatory powers and functions, though to a limited
extent only. Limited delegation of judicial orquasi-judicial authority to
administrative agencies (e.g. the Securities and Exchange Commission and the
National Labor Relations Commission) is well recognized in our jurisdiction,
basically because the need for special competence and experience has been
recognized as essential in the resolution of questions of complex or specialized
character and because of a companion recognition that the dockets of our
regular courts have remained crowded and clogged.

xxxx
As a result of the growing complexity of the modern society, it has become
necessary to create more and more administrative bodies to help in the regulation
of its ramified activities. Specialized in the particular fields assigned to them,
they can deal with the problems thereof with more expertise and dispatch
than can be expected from the legislature or the courts of justice. This is the
reason for the increasing vesture of quasi-legislative and quasi-judicial
powers in what is now not unquestionably called the fourth department of the
government.

xxxx

There is no question that a statute may vest exclusive original jurisdiction in an


administrative agency over certain disputes and controversies falling within the
agency's special expertise. The very definition of an administrative agency
includes its being vested with quasi-judicial powers. The ever increasing
variety of powers and functions given to administrative agencies recognizes
the need for the active intervention of administrative agencies in matters
calling for technical knowledge and speed in countless controversies which
cannot possibly be handled by regular courts. (Emphasis ours.)

FOURTH ISSUE: PRESIDENT AMPLY VESTED WITH STATUTORY


POWER TO APPROVE TRB CONTRACTS

Just like their parallel stance on the grant to TRB of the power to enter into
toll agreements, e.g., TOAs or STOAs, the petitioners in the first three petitions
would assert that the grant to the President of the power to peremptorily authorize
the assignment by PNCC, as franchise holder, of its franchise or the usufruct in its
franchise is unconstitutional. It is unconstitutional, so petitioners would claim, for
being an encroachment of legislative power.

As earlier indicated, Section 3 (a) of P.D. 1112 requires approval by the


President of any contract TRB may have entered into or effected for the
construction and operation of toll facilities. Complementing Section 3 (a) is 3 (e)
(3) of P.D. 1112 enjoining the transfer of the usufruct of PNCC’s franchise without
the President’s prior approval. For perspective, Section 3 (e) (3) of P.D. 1112
provides:

That the toll operator shall not lease, transfer, grant the usufruct of, sell or
assign the rights or privileges acquired under the [TOC] to any person x x x or
legal entity nor merge with any other company or corporation organized for the
same purpose without the prior approval of the President of the Philippines. In the
event of any valid transfer of the TOC, the Transferee shall be subject to all the
[80]
conditions, terms, restrictions and limitations of this Decree x x x.

The President’s approving authority is of statutory origin. To us, there is


nothing illegal, let alone unconstitutional, with the delegation to the President of
the authority to approve the assignment by PNCC of its rights and interest in its
franchise, the assignment and delegation being circumscribed by restrictions in the
delegating law itself. As the Court stressed in Kilosbayan v. Guingona, Jr.,[81] the
rights and privileges conferred under a franchise may be assigned if authorized by
a statute, subject to such restrictions as may be provided by law, such as the prior
approval of the grantor or a government agency.[82]

There can, therefore, be no serious challenge to this presidential- approving


prerogative. Should grave abuse of discretion in some way infect the exercise of
the prerogative, then the approval action may be nullified for that reason, but not
on the ground that the underlying authority is constitutionally doubtful. If the TRB
may validly be empowered to grant private entities the authority to operate toll
facilities, would a delegation of a lesser authority to approve the grant to the head
of the administrative machinery of the government be objectionable?

The fact that P.D. 1112 partakes of a martial law issuance does
not per se provide an objectionable feature to the decree, albeit it may be argued
with some plausibility that then President Marcos intended to have the final say as
to who shall act as the toll operators of the Luzon expressways. Be that as it may,
“all proclamations, orders, decrees, instructions, and acts promulgated, issued, or
done by the former President (Ferdinand E. Marcos) are part of the law of the land,
and shall remain valid, legal, binding, and effective, unless modified, revoked or
superseded by subsequent proclamations, orders, decrees, instructions, or other acts
of the President.”[83] To emphasize, Padua v. Ranada cited Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, quoting that:

The Court wryly observes that during the past dictatorship, every
presidential issuance, by whatever name it was called, had the force and effect of
law because it came from President Marcos. Such are the ways of
despots. Hence, it is futile to argue … that LOI 474 could not have repealed P.D.
No. 27 because the former was only a letter of instruction. The important thing is
that it was issued by President Marcos, whose word was law during that time.[84]
FIFTH ISSUE: ASSAILED STOAS VALIDLY ENTERED

This brings us to the issue of the validity of certain provisions of the STOAs
and related agreements entered into by the TRB, as duly approved by the
President.

Relying on Clause 17.4.1[85] of the MNTC STOA that the lenders have the
unrestricted right to appoint a substitute entity in case of default of MNTC or of the
occurrence of an event of default in respect of the loans, petitioners argue that
since MNTC is the assignee or transferee of PNCC’s franchise, then it steps into
the shoes of PNCC. They contend that the act of replacing MNTC as grantee is
tantamount to an amendment or alteration of the PNCC’s original franchise and
hence unconstitutional, considering that the constitutional power to appoint a new
franchise holder is reserved to Congress.[86]

This contention is bereft of merit.

Petitioners’ presupposition that only Congress has the power to directly


grant franchises is misplaced. Time and again, We have held that administrative
agencies may be empowered by the Legislature by means of a law to grant
franchises or similar authorizations.[87] And this, We have sufficiently addressed in
the present case.[88] To reiterate, We discussed in Albano that our statute books are
replete with laws granting administrative agencies the power to issue
authorizations.[89] This delegation of legislative power to administrative agencies
is allowed “in order to adapt to the increasing complexity of modern
life.”[90] Consequently, We have held that the “privileges conferred by grant by
local authorities as agents for the state constitute as much a legislative franchise as
though the grant had been made by an act of the Legislature.”[91]

In this case, the TRB’s charter itself, or Section 3 (e) of P.D. 1112,
specifically empowers it to “grant authority to operate a toll facility and to issue
therefore the necessary ‘Toll Operation Certificate’ subject to such conditions as
shall be imposed by the [TRB]x x x.”[92] Section 3 (a) of the same law permits the
TRB to enter into contracts for the construction, operation and maintenance of toll
facilities. Clearly, there is no question that the TRB is vested by the Legislature,
through P.D. 1112, with the power not only to grant an authority to operate a toll
facility, but also to enter into contracts for the construction, operation and
maintenance thereof.

Petitioners also contend that substituting MNTC as the grantee in case of its
default with respect to its loans is tantamount to an amendment of PNCC’s original
franchise and is hence, unconstitutional. We also find this assertion to be without
merit. Besides holding that the Legislature may properly empower administrative
agencies to grant franchises pursuant to a law, We have also earlier explained in
this case that P.D. 1113 and the amendatory P.D. 1894 both vested the TRB with
the power to impose conditions on PNCC’s franchise in an appropriate contract
and may therefore amend or alter the same when public interest so requires;[93] save
for the conditions stated in Sections 1 and 2 of P.D. 1894, which relates to the
coverage area of the tollways and the expiration of PNCC’s original
franchise.[94] P.D. 1112 provided further that the TRB has the power to amend or
modify a Toll Operation Certificate that it issued when public interest so
requires.[95] Accordingly, to Our mind, there is nothing infirm much less
questionable about the provision in the STOA, allowing the substitution of MNTC
in case it defaults in its loans.

Furthermore, in the subject provision (Clause 17.4.1[96]), the “unrestricted


right” of the lender to appoint a substituted entity is never intended to afford such
lender a plenary power to do so. The subject clause states:

17.4.1 The PARTIES acknowledge that following a Notice of Substitution


under clauses 17.2 or 17.3 the LENDERS have, subject to the provisions of
Clause 17.4.3, the unrestricted right to appoint a SUBSTITUTED ENTITY in
place of MNTC following the declaration of the occurrence of a MNTC
DEFAULT prior to full repayment of the LOANS or of an event of default in
respect of the LOANS. GRANTOR shall extend all reasonable assistance to the
AGENT to put in place a SUBSTITUTED ENTITY. MNTC shall make available
all necessary information to potential SUBSTITUTED ENTITY to enable such
entity to evaluate the Project. (Emphasis ours.)

It is clear from the above-quoted provision that Clause 17.4.1 should always
be construed and read in conjunction with Clauses 17.2, 17.3, 17.4.2, 17.4.3 and
20.12. Clauses 17.2 and 17.3 discuss the procedures that must be followed and
undertaken in case of MNTC’s default prior to the full repayment of the loans, and
before the substitution under Clause 17.4.1 could take place. These clauses
provide the following process:

Prior to Full Repayment of the LOANS:

17.2 Upon occurrence of an MNTC DEFAULT under Clause 17.1(a) and (e)
prior to full repayment of the LOANS, GRANTOR shall serve a written Notice
of Default to MNTC with copy to the AGENT giving a reasonable period of
time to cure the MNTC DEFAULT, such period being three (3) months from
receipt of the notice or such longer period as may be approved by
GRANTOR, taking due consideration of the nature of the default and of the
repair works required. If MNTC fails to remedy such default during such three
(3) month or [sic] curing period,GRANTOR may issue a Notice of Substitution
on MNTC, copy furnished to the AGENT, which shall take effect upon the
assumption and take over by the SUBSTITUTED ENTITY pursuant to the
provisions of Clause 17.4 hereof; Provided, However, that prior to such
assumption and take over by the SUBSTITUTED ENTITY, MNTC shall continue
to OPERATE AND MAINTAIN thePROJECT ROADS and shall place in an
escrow account the TOLL revenues, save such amounts as may be needed to
primarily cover the OPERATING COSTS and as may be owing and due to the
lenders under the LOANS and, secondarily, to cover the PNCC Gross Toll
Revenue Share, Provided, Further, that upon the assumption and take over by the
SUBSTITUTED ENTITY, such assumption and take over shall have the effect of
revoking the rights, privileges and obligations of MNTC under this
AGREEMENT in favor of the SUBSTITUTED ENTITY and MNTC shall cease
to be a PARTY to this AGREEMENT.

17.3 If prior to full repayment of the LOANS MNTC fails to remedy MNTC
DEFAULT under Clause 17.1 (b) or an MNTC DEFAULT occurs under Clause
17.1 (c), (d) or (f) prior to full repayment of the LOANS, GRANTOR shall serve
a Notice of Substitution on MNTC, copy furnished to the AGENT, as
provided under Clause 17.4.[97] (Emphasis ours)

It is apparent from the above-quoted provision that it is the TRB –


representing the Republic of the Philippines as Grantor – which has control over
the situation before Clause 17.4.1 could come into place. To stress, following the
condition under Clause 17.4.1, it is only when Clauses 17.2 and 17.3 have been
complied with that the entire Clause 17.4 could begin to materialize.

Clauses 17.4.2 and 17.4.3 also provide for certain parameters as to when a
substituted entity could be considered acceptable, and enumerate the conditions
that should be undertaken and complied with.[98] Particularly, the subject
provisions state:

17.4.2 The SUBSTITUTED ENTITY shall be required to provide evidence to


GRANTOR that at the time of substitution:

(i) it is legally and validly nominated by the AGENT as MNTC’s


substitute to continue the implementation of the PROJECT.

(ii) it is legally and validly constituted and has the capability to enter into
such agreement as may be required to give effect to the substitution;

17.4.3 The AGENT shall have one (1) year to effect a substitution under Clause
17.4; Provided, However, that during this time the AGENT shall not take
any action which may jeopardize the continuity of the service and shall
take the necessary action to ensure its continuation. To effect such
substitution, the AGENT shall notify its intention to GRANTOR and shall,
at the same time, give all necessary information to
GRANTOR. GRANTOR shall, within one (1) month following such
notification, inform the AGENT of its acceptance of the substitution,
if the conditions set forth in Clause 17.4.2 have been satisfied. The
SUBSTITUTED ENTITY shall be permitted a reasonable period to cure
any MNTC DEFAULT under Clause 17.1 (a), (b) or (e).

From the foregoing, it is clear that the lenders do not actually have an
absolute or “unrestricted” right to appoint the SUBSTITUTED ENTITY in view of
TRB’s right to accept or reject the substitution within one (1) month from notice
and such right to appoint comes into force only if and when the TRB decides to
effectuate the substitution of MNTC as allowed in Clause 17.2 of the MNTC
STOA.

At the same time, Clause 17.4.4 particularizes the conditions upon which the
substitution shall become effective, to wit:

17.4.4 The Substitution shall be effective upon:

(a) the appointment of a SUBSTITUTED ENTITY in accordance with


the provisions of this Clause 17.4; and,

(b) assumption by the SUBSTITUTED ENTITY of all of the rights and


obligations of MNTC under this AGREEMENT, including the
payment of PNCC’s Gross Toll Revenue Share under the JOINT
VENTURE AGREEMENT dated 29 August 1995 and all other
agreements in connection with this agreement signed and executed by
and between PNCC and MNTC.

The afore-quoted Section (a) of Clause 17.4.4 reiterates the necessity of


compliance by the substituted entity with all the conditions provided under Clause
17.4. Furthermore, following the above-quoted conditions veritably protects the
interests of the Government. As previously discussed supra, PNCC’s assets with
respect to its legislative franchise under P.D. 1113, as amended, has already been
automatically turned over to the Government. And whatever share PNCC has in
relation to the currently implemented administrative authority granted by the TRB
is merely being held in trust by it in favor of the Government. Accordingly, the
fact that Section “b” of Clause 17.4.4 ensures that the obligation to pay PNCC’s
Gross Toll Revenue Share is assumed by the substituted entity, necessarily means
that the Government’s Gross Toll Revenue Share is safeguarded and kept intact.

The MNTC STOA also states that only in case no substituted entity is
established in accordance with Clause 17.4 that Clause 17.5 shall be
applied. Clause 17.5 grants the lenders the power to extend the concession in case
the Grantor (Republic of the Philippines) takes over the same, for a period not
exceeding fifty years, until full payment of the loans.[99] Petitioners contend that
the option to extend the concession for that stated period is, however,
unconstitutional.

This assertion is impressed with merit. At the outset, Clause 17.5 does not
actually grant the lenders of the defaulting concessionaire, the power to unilaterally
extend the concession for a period not exceeding fifty years. For reference, the
pertinent provision states:

17.5 Only if no SUBSTITUTE ENTITY is established … shall the GRANTOR


[TRB] be entitled to take-over the CONCESSION with no commitment on the
LOANS in which case the OPERATION AND MAINTENANCE CONTRACT
shall be assigned to any entity that the AGENT[100] may designate provided such
entity has a sufficient legal and technical capacity to perform and assume the
obligations of the OPERATION AND MAINTENANCE CONTRACT under this
AGREEMENT. The LENDERS shall receive all TOLL, excepting PNCC’s
revenue share provided for under the JOINT INVESTMENT PROPOSAL (vide:
Annex “C” hereof), for as long as required until full repayment of the
LOANS including if necessary an extension of the CONCESSION PERIOD
which in no case shall exceed fifty (50) years; Provided that the LENDERS
support all amounts payable under the OPERATION AND MAINTENANCE
CONTRACT. For avoidance of doubt, the GRANTOR will have no obligation in
relation to liabilities incurred by MNTC prior to such take-over.[101] (Emphasis
supplied)

The afore-quoted provision should be read in conjunction with Clause 20.12,


which expressly provides that the MNTC STOA is “made under and shall be
governed by and construed in accordance with” the laws of the Philippines, and
particularly, by the provisions of P.D. Nos. 1112, 1113 and 1894. Under the
applicable laws, the TRB may very well amend, modify, alter or revoke the
authority/franchise “whenever the public interest so requires.”[102] In a word, the
power to determine whether or not to continue or extend the authority granted to a
concessionaire to operate and maintain a tollway is vested to the TRB by the
applicable laws. The necessity of whether or not to extend the concession or the
authority to construct, operate and maintain a tollway rests, by operation of law,
with the TRB. As such, the lenders cannot unilaterally extend the concession
period, or, with like effect, impose upon or demand that the TRB agree to extend
such concession.

Be that as it may, it must be noted, however, that while the TRB is vested by
law with the power to extend the administrative franchise or authority that it
granted, nevertheless, it cannot do so for an accumulated period exceeding fifty
years. Otherwise, it would violate the proscription under Article XII, Section 11
of the 1987 Constitution, which states that:[103]

Sec. 11. No franchise, certificate, or any other form of authorization for


the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such
citizens, nor shall such franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be subject to
amendment, alteration or repeal by the Congress when the common good so
requires. The State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing body of
any public utility enterprise shall be limited to their proportionate share in its
capital, and all the executive and managing officers of such corporation or
associations must be citizens of the Philippines. (Emphasis Ours)

In this case, the MNTC STOA already has an original stipulated period of
thirty years.[104] Clause 17.5 allows the extension of this period if necessary to
fully repay the loans made by MNTC to the lenders, thus:

x x x The LENDERS shall receive all TOLL, excepting PNCC’s revenue


share provided for under the JOINT INVESTMENT PROPOSAL (vide: Annex
“C” hereof), for as long as required until full repayment of the LOANS including
if necessary an extension of the CONCESSION PERIOD which in no case
shall exceed a maximum period of fifty (50) years; x x x (Emphasis ours.)

If the maximum extension as provided for in Clause 17.5, i.e. fifty years,
shall be utilized, the accumulated concession period that would be granted in this
case would effectively be eighty years. To Us, this is a clear violation of the fifty-
year franchise threshold set by the Constitution. It is in this regard that we strike
down the above-quoted clause, “including if necessary an extension of the
CONCESSION PERIOD which in no case shall exceed a maximum period of
fifty (50) years” in Clause 17.5 as void for being violative of the
Constitution.[105] It must be made abundantly clear, however, that the nullity shall
be limited to such extension beyond the 50-year constitutional limit.

All told, petitioners’ allegations that the TRB acted with grave abuse of
discretion and with gross disadvantage to the Government with respect to Clauses
17.4.1 and 17.5 of the MNTC STOA are unfounded and speculative.

Petitioners also allege that the MNTC STOA is grossly disadvantageous to


the Government since under Clause 11.7 thereof, the Government, through the
TRB, guarantees the viability of the financing program of a toll operator. Under
Clause 11.7 of the MNTC STOA, the TRB agreed to pay monthly, the difference
in the toll fees actually collected by MNTC and that which it could have realized
under the STOA. The pertinent provisions states:

11.7 To insure the viability and integrity of the Project, the Parties
recognize the necessity for adjustments of the AUTHORIZED TOLL RATE ….
In the event that said adjustment are not effected as provided under this
Agreement for reasons not attributable to MNTC, the GRANTOR
[TRB] warrants and so undertakes to compensate, on a monthly basis, the
resulting loss of revenue due to the difference between the AUTHORIZED
TOLL RATE actually collected and the AUTHORIZED TOLL RATE
which MNTC would have been able to collect had the … adjustments been
implemented. (Emphasis ours)

As set out in the preamble of P.D. 1112, the need to encourage the infusion
of private capital in tollway projects is the underlying rationale behind the
enactment of said decree. Owing to the scarce capital available to bankroll a huge
capital-intensive project, such as the North Luzon Tollway project, it is well-nigh
inevitable that the financing of these types of projects is sourced from private
investors. Quite naturally, the investors expect the regularity of the cash flow. It is
perhaps in this broad context that the obligation of the Grantor under Clause 11.7
of the MNTC STOA was included in the STOA. To Us, Clause 11.7 is not only
grossly disadvantageous to the Government but a manifest violation of the
Constitution.

Section 3 (e) (5) of P.D. 1112 explicitly states:

[t]hat no guarantee, Certificate of Indebtedness, collateral securities, or


bonds shall be issued by any government agency or government-owned or
controlled corporation on any financing program of the toll operator in connection
with his undertaking under the Toll Operation Certificate.

What the law seeks to prevent in this situation is the eventuality that the
Government, through any of its agencies, could be obligated to pay or secure,
whether directly or indirectly, the financing by the private investor of the
project. In this case, under Clause 11.7 of the MNTC STOA, the Republic of the
Philippines (through the TRB) guaranteed the security of the project against
revenue losses that could result, in case the TRB, based on its determination of a
just and reasonable toll fee, decides not to effect a toll fee adjustment under the
STOA’s periodic/interim adjustment formula. The OSG, in its Comment, admitted
that “the amounts the government undertook to pay in case of Clause 11.7
violation … is … an undertaking to pay compensatory damage for something akin
to a breach of contract.”[106] As P.D. 1112 itself expressly prohibits the guarantee
of a security in the financing of the toll operator pursuant to its tollway project,
Clause 11.7 cannot be a valid stipulation in the STOA.
This is more so for being in violation of the Constitution. Article VI,
Section 29 (1) of the Constitution mandates that “[n]o money shall be paid out of
the Treasury except in pursuance of an appropriation made by law.”[107] We have
held in Radstock that “government funds or property shall be spent or
used solely for public purposes, as expressly mandated by Section 4 (2) of PD 1445
or the Government Auditing Code.”[108] Particularly, We held in Radstock case
that:

[t]he power to appropriate money from the General Funds of the Government
belongs exclusively to the Legislature. Any act in violation of this iron-clad
rule is unconstitutional.

Reinforcing this Constitutional mandate, Sections 84 and 85 of PD 1445


require that before a government agency can enter into a contract involving
the expenditure of government funds, there must be an appropriation law for
such expenditure, thus:

Section 84. Disbursement of government funds.

1. 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.

xxxx

Section 85. Appropriation before entering into contract.

No contract involving the expenditure of public funds shall be entered into unless there is
an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient
to cover the proposed expenditure.

xxxx

Section 86 of PD 1445, on the other hand, requires that the proper


accounting official must certify that funds have been appropriated for the
purpose. Section 87 of PD 1445 provides that any contract entered into contrary
to the requirements of Sections 85 and 86 shall be void….[109] (Emphasis ours.)

In the instant case, the TRB, by warranting to compensate MNTC with the
loss of revenue resulting from the non-implementation of the periodic and interim
toll fee adjustments, violates the very constitutionally guaranteed power of the
Legislature, to exclusively appropriate money for public purpose from the General
Funds of the Government. The TRB veritably accorded unto itself the exclusive
authority granted to Congress to appropriate money that comes from the General
Funds, by making a warranty to compensate a revenue loss under Clause 11.7 of
the MNTC STOA. There is not even a badge of indication that the aforementioned
requisites under the Constitution and P.D. 1445 in respect of appropriation of
money from the General Funds of the Government have been properly complied
with. Worse, P.D. 1112 expressly prohibits the guarantee of security of the
financing of a toll operator in connection with his undertaking under the Toll
Operation Certificate. Accordingly, Clause 11.7 of the MNTC STOA, under
which the TRB warrants and undertakes to compensate MNTC’s loss of revenue
resulting from the non-implementation of the periodic and interim toll fee
adjustments, is illegal, unconstitutional and hence void.

Parenthetically, We also find a similar provision in the SLTC STOA under


Clause 8.08 thereof, which states that:[110]

(2) In the event the Authorized Toll Rate and adjustments thereto are not
implemented or made effective in accordance with the provisions of this
Agreement, for reasons not attributable to the fault of the Investor and/or the
Operator, including the reversal by the TRB or by any competent court or
authority of any such adjustment in the Authorized Toll Rate previously
approved by the TRB, except where such reversal is by reason of a
determination of the misapplication of the Authorized Toll Rates, the Grantor
shall compensate the Operator, on a monthly basis and within thirty (30) days
of submission by the Operator of a notice thereof, without interest, for the
resulting loss of revenue computed as the difference between:

(a) the actual traffic volume for the month in question multiplied by the
Current Authorized Toll Rate as escalated and/or adjusted, that should be
in effect; and

(b) the Gross Toll Revenue for the month in question.

(3) The obligation of the Grantor to compensate the Operator shall continue until
the applicable Current Authorized Toll Rate is implemented.

Akin to what is contemplated in Clause 11.7 of the MNTC STOA, Clauses


8.08 (2) and (3) of the SLTC STOA, under which the TRB warrants or is obligated
to compensate the Operator for its loss of revenue resulting from the non-
implementation of the calculation/formula of authorized toll price and toll rate
adjustments found in Clause 8 thereof, are illegal, unconstitutional and, hence,
void. This ruling is consistent with the TRB’s power to determine, without any
influence or compulsion – direct or indirect – as to whether a change in the toll fee
rates is warranted. We will discuss the same below.
Petitioners argue that the CITRA, SLTC and MNTC STOAs tie the hands of
the TRB as it is bound by the stipulated periodic and interim toll rate adjustments
provided therein. Petitioners contend that the SMMS (CITRA STOA), the SLTC
and the MNTC STOA’s provisions on initial toll rates and periodic/interim toll
rate adjustments, by using a built-in automatic toll rate adjustment
formula,[111] allegedly guaranteed fixed returns for the investors and negated the
public hearing requirement.
This contention is erroneous. The requisite public hearings under Section 3
(d) of P.D. 1112 and Section 8 (b) of P.D. 1894 are not negated by the fixing of the
initial toll rates and the periodic adjustments under the STOA.

Prefatorily, a clear distinction must be made between the statutory


prescription on the fixing of initial toll rates, on the one hand, and
of periodic/interim or subsequent toll rates, on the other. First, the hearing
required under the said provisos refers to notice and hearing for the approval or
denial of petitions for toll rate adjustments – or the subsequent toll rates, not to the
fixing of initial toll rates. By express legal provision, the TRB is authorized to
approve the initial toll rates without the necessity of a hearing. It is only when a
challenge on the initial toll rates fixed ensues that public hearings are
required. Section 8 of P.D. 1894 says so:

x x x the GRANTEE shall collect toll at such rates as shall initially be approved
by the [TRB]. The [TRB] shall have the authority to approve such initial toll
rates without the necessity of any notice and hearing, except as provided in
the immediately succeeding paragraph of this Section. For such purpose, the
GRANTEE shall submit for the approval of the [TRB] the toll proposed to be
charged the users. After approval of the toll rate(s) by the [TRB] and publication
thereof by the GRANTEE once in a newspaper of general circulation, the toll
shall immediately be enforceable and collectible upon opening of the expressway
to traffic use.

Any interested Expressways users shall have the right to file, within x x x
(90) days after the date of publication of the initial toll rate, a petition with
the [TRB] for a review of the initial toll rate; provided, however, that the filing
of such petition and the pendency of the resolution thereof shall not suspend the
enforceability and collection of the toll in question. The [TRB], at a public
hearing called for the purpose … shall then conduct a review of the initial toll
(sic) shall be appealable to the [OP] within ten (10) days from the promulgation
thereof. (Emphasis ours.)
Of the same tenor is Section 3 (d) of P.D. 1112 stating that the TRB has the
power and duty to:

[i]ssue, modify and promulgate from time to time the rates of toll that will
be charged the direct users of toll facilities and upon notice and hearing, to
approve or disapprove petitions for the increase thereof. Decisions of the
[TRB] on petitions for the increase of toll rate shall be appealable to the [OP]
within ten (10) days from the promulgation thereof. Such appeal shall not
suspend the imposition of the new rates, provided however, that pending the
resolution of the appeal, the petitioner for increased rates in such case shall
deposit in a trust fund such amounts as may be necessary to reimburse toll payers
affected in case a (sic) reversal of the decision.[112] (Emphasis Ours.)

Similarly in Padua v. Ranada, the fixing of provisional toll rates by the TRB
without a public hearing was held to be valid, such procedure being expressly
provided by law.[113] To be very clear, it is only the fixing of the initial and the
provisional toll rates where a public hearing is not a vitiating
requirement. Accordingly, subsequent toll rate adjustments are mandated by law
to undergo both the requirements of public hearing and publication.

In Manila International Airport Authority (“MIAA”) v. Blancaflor, the


Court expounded on the necessity of a public hearing in rate fixing/increases
scenario. There, the Court ruled that the MIAA, being an agency attached to the
Department of Transportation and Communications (“DOTC”), is governed by
Administrative Code of 1987,[114]Book VII, Section 9 of which specifically
mandates the conduct of a public hearing.[115] Accordingly, the MIAA’s
resolutions, which increased the rates and charges for the use of its facilities
without the required hearing, were struck down as void.[116] Similarly, as We do
concede, the TRB, being likewise an agency attached to the DOTC,[117] is governed
by the same Code and consequently requires public hearing in appropriate cases. It
is, therefore, imperative that in implementing and imposing new, i.e. subsequent
toll rates arrived at using the toll rate adjustment formula, the subject tollway
operators and the TRB must necessarily comply not only with the requirement of
publication but also with the equally important public hearing. Accordingly, any
fixing of the toll rate, which did not or does not comply with the twin requirements
of public hearing and publication, must therefore be struck down as void. In such
case, the previously valid toll rate shall consequently apply, pending compliance
with the twin requirements for the new toll rate.
In the instant consolidated cases, the fixing of the initial toll rates may have
indeed come to pass without any public hearing.[118] Unfortunately for petitioners,
and notwithstanding its presumptive validity, they did not assail the initial toll rates
within the timeframe provided in P.D. 1112 and P.D. 1894.[119] Besides, as earlier
explicated, the STOA provisions on periodic rate adjustments are not a bar to a
public hearing as the formula set forth therein remains constant, serving only as a
guide in the determination of the level of toll rates that may be allowed.

It is apropos to state at this juncture that, in determining the reasonableness


of the subsequent toll rate increases, it behooves the TRB to seek out the
Commission on Audit (“COA”) for assistance in examining and auditing the
financial books of the public utilities concerned. Section 22, Chapter 4, Subtitle B,
Title 1, Book V of the Administrative Code of 1987 expressly authorizes the COA
to examine the aforementioned documents in connection with the fixing of rates of
every nature, including as in this case, the fixing of toll fees.[120] We have on
certain occasions applied this provision. Manila Electric Company, Inc. v.
Lualhati easily comes to mind where this Court tasked the Energy Regulatory
Commission to seek the assistance of the COA in determining the reasonableness
of the rate increases that MERALCO intended to implement.[121] We have
consistently held that “the law is deemed written into every contract.”[122] Being a
provision of law, this authority of the COA under the Administrative Code should
therefore be deemed written in the subject contracts i.e. the STOAs.

In this regard, during the examination and audit, the public utilities
concerned are mandated to “produce all the reports, records, books of accounts and
such other papers as may be required,” and the COA is empowered to “examine
under oath any official or employee of the said public utilit[ies].” [123] Any public
utility unreasonably denying COA access to the aforementioned documents,
unnecessarily obstructs the examination and audit and may be adjudged liable “of
concealing any material information concerning its financial status, shall be subject
to the penalties provided by law.”[124] Finally, the TRB is further obliged to take
the appropriate action on the COA Report with respect to its finding of
reasonableness of the proposed rate increases.[125]
Furthermore, while the periodic, interim and other toll rate adjustment
formulas are indicated in the STOAs,[126] it does not necessarily mean that the TRB
should accept a rate adjustment predicated on the economic data, references or
assumptions adopted by the toll operator. At the end of the day, the final figures
should be those of the TRB based on its appreciation of the relevant rate-
influencing data. In fine, the TRB should exercise its rate-fixing powers vested to
it by law within the context of the agreed formula, but always having in mind that
the rates should be just and reasonable. Conversely, it is very well within the
power of the TRB under the law to approve the change in the current toll
fees.[127] Section 3 (d) of P.D. 1112 grants the TRB the power to “[i]ssue, modify
and promulgate from time to time the rates of toll that will be charged the direct
users of toll facilities.” But the reasonableness of a possible increase in the fees
must first be clearly and convincingly established by the petitioning
entities, i.e. the toll operators. Otherwise, the same should not be granted by the
approving authority concerned. In Philippine Communications Satellite
Corporation v. Alcuaz,[128] the Court had the opportunity to explain what is meant
by a just and reasonable fixing of rates, thus:

Hence, the inherent power and authority of the State, or its authorized agent, to
regulate the rates charged by public utilities should be subject always to the
requirement that the rates so fixed shall be reasonable and just. A
commission has no power to fix rates which are unreasonable or to regulate them
arbitrarily. This basic requirement of reasonableness comprehends such rates
which must not be so low as to be confiscatory, or too high as to be oppressive.

What is a just and reasonable rate is not a question of formula but of sound
business judgment based upon the evidence it is a question of fact calling for
the exercise of discretion, good sense, and a fair, enlightened and
independent judgment. In determining whether a rate is confiscatory, it is
essential also to consider the given situation, requirements and opportunities of
the utility. A method often employed in determining reasonableness is the fair
return upon the value of the property to the public utility x x x. (Emphasis ours.)

If in case the TRB finds the change in the rates to be reasonable and
therefore merited, the increase shall then be implemented after the formalities of
public hearing and publication are complied with. In this case, it is clear that the
change in the toll fees is immediately effective and implementable. This is
notwithstanding that, in case of anincrease in the toll fees, an appeal thereon is
filed. The law is clear. Thus:
x x x Decisions of the [TRB] on petitions for the increase of toll rate shall be
appealable to the Office of the President within ten (10) days from the
promulgation thereof. Such appeal shall not suspend the imposition of the new
rates, provided however, that pending the resolution of the appeal, the petitioner
for increased rates in such case shall deposit in a trust fund such amounts as may
be necessary to reimburse toll payers affected in case a reversal of the
decision.[129] (Emphasis ours.)

Besides the settled rule under Section 3 (d) of P.D. 1112 that the power to
issue, modify and promulgate toll fees rests with the TRB, it must also be
underscored that the periodic and the interim adjustments found in Clauses 11.4 to
11.6 of the MNTC STOA do not necessarily guarantee an increase in the toll
fees. To stress, the formula is based on many variable factors that could mean
either an increase or a decrease in the toll fees, depending, inter alia, on how well
certain economies are doing; and on the projections and figures published by the
Bangko Sentral ng Pilipinas (“BSP”).[130] It is therefore arduous to contemplate
a grossness in a disadvantage that could only possibly arise in case of a non-
implementation of a change – particularly, an increase – in the toll rates.

Petitioners have not incidentally shown that it is the traveling public, the
users of the expressways, who shouldered or will shoulder the completion of the
projects by way of exorbitant fees payment, with the investors ending up with a
“killing” therefrom. This conclusion, for all its factual dimension, is too simplistic
for acceptance. And it does not consider the reality that the Court is not a trier of
facts. Neither does it take stock of the nature and function of toll roads and toll fees
paid by motorists, as aptly elucidated inNorth Negros Sugar Co., Inc. v.
Hidalgo,[131] thus:

“Toll” is the price of the privilege to travel over that particular


highway, and it is a quid pro quo. It rests on the principle that he who, receives
the toll does or has done something as an equivalent to him who pays it. Every
traveler has the right to use the turnpike as any other highway, but he must pay
the toll.[132]

A toll road is a public highway, differing from the ordinary public


highways chiefly in this: that the cost of its construction in the first instance
is borne by individuals, or by a corporation, having authority from the state
to build it, and, further, in the right of the public to use the road after
completion, subject only to the payment of toll.[133]
Toll roads are in a limited sense public roads, and are highways for travel,
but we do not regard them as public roads in a just sense, since there is in them a
private proprietary right x x x.[134] (Emphasis ours.)

Parenthetically, our review of Section 7 of the SMMS STOA readily yields


the information that the level of the initial toll rates hinges on a mix of factors. Tax
holidays that may be granted and the tax treatment of dividends may be
mentioned. On the other hand, the subsequent periodic adjustments are provided
to address factors that usually weigh on the financial condition of any business
endeavor, such as currency devaluation, inflation and the usual increases in
maintenance and operational costs incorporated into the formula provided
therefor. Even with the existence of an automatic toll rate adjustment formula,
compliance by the TRB and the other respondents with the twin requirements of
public hearing and publication is still mandatory. To reiterate, laws always occupy
a plane higher than mere contract provisions. In case the minimum statutory
requirements are stiffer than that of a contract, or when the contract does not
expressly stipulate the minimum requirements of the law, then We rule that
compliance with such minimum legal requirements should be done. To
summarize, any toll fee increase should comply with the legal twin requirements of
publication and public hearing, the absence of which will nullify the imposition
and collection of the new toll fees.

In all, the initial toll rates and periodic adjustments appear to Us as simply
predicated on the basic rationale for investing in a toll project, which to repeat is: a
reasonable rate of return for the investment. Section 2 (o) of the BOT Law, as
amended, provides for a definition for a reasonable rate of return on investments
and operating and maintenance cost.[135] Running through the gamut of our statutes
providing for and encouraging partnership of the public and private sector is the
paramount common good for infrastructure projects and the equally important
factor of giving a reasonable rate of return to private sector’s investments. The
viability of any infrastructure project depends on the returns – which should be
reasonable – of the investment coming from the private sector.

While the interests of the public are ideally to be accorded primacy in


considering government contracts, the reality on the ground is that the tollway
projects may not at all be possible or would be difficult to realize without the
involvement of the investing private sector, which expects its usual share of
profit. Thus, the Court is at a loss to understand how the level of the initial toll
rates, which depended on several factors indicated above, and the subsequent
adjustments resulted in the charging of exorbitant toll fees that, to petitioners,
enabled the investors to shift the burden of financing the completion of the projects
on the motoring public.

Neither does the alleged drastic—if we may characterize it as such—steep


increase in the level of toll rates for NLEX constitute a “killing” for PNCC and its
partner MNTC. Petitioners make much of the amount of the toll fees vis-à-vis the
then prevailing minimum wage. These plays of figures detract from the essential
concern on the propriety of the level of the toll rates vis-à-vis the investments sunk
in the NLEX project with a view, on the part of private investors, to a reasonable
return on their investment. Where no substantial figures were provided on the
investments, the projected operating and maintenance costs vis-à-vis the projected
revenue from the toll fees, no substantial conclusions may reasonably be deduced
therefrom. Besides, to be taken into account in relation to the costs of the
construction and rehabilitation of the NLEX is the length of the tollway and for
which motorists have to pay the corresponding toll. Certainly, the allegations and
conclusions of petitioners as to the unreasonable increase of the toll rates are
without adequate factual mooring.

The use of a tollway is a privilege that comes at a cost. The toll is a price
paid for the use of a privilege. There are to be sure alternative roads and routes,
which motorists may fall back on if they are unwilling to pay the toll. The toll, as
might be expected, is pegged at a level that makes the developmental projects and
their maintenance viable; otherwise, no investment can be expected for the
furtherance of the projects.

Petitioners Francisco and Hizon alleged that, per the minutes of the TRB
meetings, the Board deliberately refrained, particularly with respect to the Skyway
project, from conducting public hearings for the grant of the initial toll rates and on
the rate adjustment formula to be used in order to accelerate the implementation of
the projects. The allegation is far from correct. A perusal of the pertinent minutes
of the TRB meetings, particularly that held on August 17, 1995,[136] in fact would
disclose a picture different from that depicted by said petitioners. Nothing in the
minutes of said meeting tends to indicate that the TRB resolved to dispense with
public hearings. We, therefore, find petitioners Francisco and Hizon’s attempt to
mislead the Court by falsely citing supposed portions[137] of the August 17, 1995
TRB meeting very unfortunate. They quoted a correction on the minutes of the
Special Board Meeting No. 95-05 held on July 26, 1995, which was taken up in the
August 17, 1995 meeting for the approval of the minutes of the previous
meeting. In said special meeting of July 26, 1995,[138] the Board deliberated on the
recommendation of ADG Santos for the conduct of a public hearing or soliciting
the endorsement of the Metro Manila Development Authority (“MMDA”). [139] But
the TRB did not resolve to omit a public hearing with respect to the toll rates. In
fact, the deliberations used the words “in the event the Board decides” and “if the
Board conducts,” clearly conveying the notion that the TRB had not decided or
resolved the issue of public hearings. Be that as it may, We rule that the TRB is
mandated to comply with the twin requirements of public hearing and publication.

Petitioners Francisco and Hizon’s lament about the TRB merely relying on,
if not yielding to, the recommendation and findings of the Technical Working
Group (“TWG”) of the DPWH on matters relative to STOA stipulations and toll-
rate fixing cannot be accorded cogency. In the area involving big finance and
complex project planning, banking on the data supplied by technicians and experts
is at once practical as it is inevitable. The Court cannot see its way clear to
understand why petitioners would begrudge the TRB for tapping the technical
know-how of others. And it cannot be overemphasized that a recommendation is
no more than an exhortation or an urging as to what is advisable or expedient, not
binding on the person to which it is being made.[140] To recommend involves the
idea that another has the final decision.[141] The ultimate decision still rests with
the TRB whether or not to accept the findings of the TWG. The minutes of the
TRB meetings show that its members went through the tedious process of
deliberating on the formula to be used in computing the toll rates. The fact that the
TRB might have adopted the TWG’s recommendation would not, on that ground
alone, vitiate the bona fides of the former’s decision nor stain the proceedings
leading to such decision. In any case, as earlier held, the toll rate adjustment
formula does not and cannot contravene the legal twin requirements of public
hearing and publication.
In another bid to nullify the STOAs in question, petitioners would foist on
the Court the arguments that, firstly, President Ramos twisted the arms of the TRB
towards entering into the agreements in question and, secondly, that the CITRA
STOA contained restrictive confidentiality provisions barring the public from
knowing their contents and the details of the negotiations related thereto.

We are not persuaded by the first ground, not necessarily because the
pressure brought to bear on TRB rendered the STOAs infirm, but because the
allegations on pressure-tactics allegedly employed by President Ramos are too
speculative for acceptance.

On the second ground, We fail to see how the insertion of the alleged
confidentiality clause in the CITRA STOA translates into grave abuse of discretion
or a violation of the Constitution, particularly Article III, Section 7 [142] thereof.
First off, the Court can take judicial notice that most commercial contracts,
including finance-related project agreements carry the standard confidentiality
clause to protect proprietary data and/or intellectual property rights. This protection
angle appears to be the intent of Clause 14.04(l)[143] of the CITRA STOA. And as
may be noted, the succeeding Clause 14.04 (2)[144] removes from the ambit of the
confidentiality restriction the following: disclosure of any information: (a) not
otherwise done by the parties; (b) which is required by law to be disclosed to
any person who is authorized by law to receive the same; (c) to a tribunal
hearing pertinent proceedings relative to the contract or agreement; and (d) to
confidential entities and persons relative to the disclosing party like its banks,
consultants, financiers and advisors. The second (item b) exception provides a
reasonable dimension to the assailed confidentiality clause.

Needless to stress, the obligation of the government to make information


available cannot be exaggerated.[145] The constitutional right to information does
not mean that every day and every hour is open house in government offices
having custody of the desired documents.[146] Petitioners have not sufficiently
shown, thus cannot really be heard to complain, that they had been unreasonably
denied access to information with regard to the MNTC or SMMS STOA. Besides,
the remedy for unreasonable denial of information that is a matter of public
concern is by way of mandamus.[147]
Finally, as to petitioners’ catch-all claim that the STOAs are
disadvantageous to the government, as therein represented by the TRB, suffice it to
state for the nonce that behind these agreements are the Board’s expertise and
policy determination on technical, financial and operational matters involving
expressways and tollways. It is not for courts to look into the wisdom and
practicalities behind the exercise by the TRB of its contract-making prerogatives
under P.D. Nos. 1112, 1113 and 1894, absent proof of grave abuse of discretion
which would justify judicial review. In this regard, the Court recalls what it wrote
in G & S Transport Corporation v. Court of Appeals,[148] to wit:

x x x courts, as a rule, refuse to interfere with proceedings undertaken by


administrative bodies or officials in the exercise of administrative functions. This
is because such bodies are generally better equipped technically to decide
administrative questions and that non-legal factors, such as government policy on
the matter are usually involved in the decision.

SIXTH ISSUE: PUBLIC BIDDING NOT REQUIRED

Private petitioners would finally maintain that public bidding is required for
the SMMS and the North Luzon/South Luzon Tollways, partaking as these projects
allegedly do of the nature of a BOT infrastructure undertaking under the BOT
Law. Prescinding from this premise, they would conclude that the STOAs in
question and related preliminary and post-STOA agreements are null and void for
want of the necessary public bidding required for government infrastructure
projects.

The contention is patently flawed.

The BOT Law does not squarely apply to the peculiar case of PNCC, which
exercised its prerogatives and obligations under its franchise to pursue the
construction, rehabilitation and expansion of the tollways with chosen partners.
The tollway projects may very well qualify as a build-operate-transfer
undertaking. However, given that the projects in the instant case have been
undertaken by PNCC in the exercise of its franchise under P.D. Nos. 1113 and
1894, in joint partnership with its chosen partners at the time when it was held
valid to do so by the OGCC and the DOJ, the public bidding provisions under the
BOT Law do not strictly apply. For, as aptly noted by the OSG, the subject STOAs
are not ordinary contracts for the construction of government infrastructure
projects, which requires under the Government Procurement Reform Act or the
now-repealed P.D. 1594,[149] public bidding as the preferred mode of contract
award. Neither are they contracts where financing or financial guarantees for the
project are obtained from the government. Rather, the STOAs actually constitute a
statutorily-authorized transfer or assignment of usufruct of PNCC’s existing
franchise to construct, maintain and operate expressways.[150]

The conclusion would perhaps be different if the tollway projects were to be


prosecuted by an outfit completely different from, and not related to, PNCC. In
such a scenario, the entity awarded the winning bid in a BOT-scheme
infrastructure project will have to construct, operate and maintain the tollways
through an automatic grant of a franchise or TOC, in which case, public bidding is
required under the law.

Where, in the instant case, a franchisee undertakes the tollway projects of


construction, rehabilitation and expansion of the tollways under its franchise, there
is no need for a public bidding. In pursuing the projects with the vast resource
requirements, the franchisee can partner with other investors, which it may choose
in the exercise of its management prerogatives. In this case, no public bidding is
required upon the franchisee in choosing its partners as such process was done in
the exercise of management prerogatives and in pursuit of its right of delectus
personae.[151] Thus, the subject tollway projects were undertaken by companies,
which are the product of the joint ventures between PNCC and its chosen partners.

Petitioners Francisco and Hizon’s assertions about the TRB awarding the
tollway projects to favored companies, unsubstantiated as they are, need no
belaboring. Suffice it to state that the discretion to choose who shall stand as
critical JV partners remained all along with PNCC, at least theoretically. Needless
to say, the records do not show that the TRB committed an oversight as an
administrative body over any aspect of tollway operations with regard to PNCC’s
selection of partners.

The foregoing disquisitions considered, there is no more point in passing


upon the propriety of prohibiting or enjoining, on the ground of unconstitutionality
or grave abuse of discretion, the implementation of the initial toll rates and/or the
adjusted toll rates for the SMSS, expanded NLEX and SLEX, as authorized by the
separate TRB resolutions, subject of and originally challenged in these
proceedings.

These TRB resolutions and the STOAs upon which they are predicated have
long been in effect. The parties have acted on these issuances and contracts whose
existence, as an operative fact, cannot be ignored, let alone erased, even if the
charge of unconstitutionality is given currency.

While not exactly of governing applicability in this case, what the Court
wrote in De Agbayani v. Philippine National Bank,[152] on the operative fact
doctrine is apropos:

x x x When the courts declare a law to be inconsistent with the


Constitution, the former shall be void and the latter shall govern. Administrative
or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws of the Constitution.” ….

Such a view has support in logic and possesses the merit of simplicity. It
may not however be sufficiently realistic. It does not admit of doubt that prior
to the declaration of nullity such challenged legislative or executive act must
have been in force and had to be complied with. This is so as until after the
judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience
and respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard be
had to what has been done while such legislative or executive act was in operation
and presumed to be valid in all respects. It is now accepted as a doctrine that
prior to its being nullified, its existence as a fact must be reckoned with. This
is merely to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity.
It would be to deprive the law of its quality of fairness and justice then, if
there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: “The actual


existence of a statute, prior to such a determination [of constitutionality], is
an operative fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration x x x.”
(Emphasis in the original.)
The petitioners in the first three (3) petitions and the respondent in the fourth
have not so said explicitly, but their brief is against the issuance of P.D. Nos. 1112,
1113 and 1894, which conferred a package of express and implied powers and
discretion to the TRB and the President resulting in the execution of what is
perceived to be offending STOAs and the runaway collection of illegal toll fees.
And they have come to the Court to strike down all these issuances, agreements
and exactions. While the Court is not insensitive to their concerns, the rule is that
all reasonable doubts should be resolved in favor of the constitutionality of a
statute,[153] and the validity of the acts taken in pursuant thereof. It follows,
therefore, that the Court will not set aside a law as violative of the Constitution
except in a clear case of breach[154] and only as a last resort.[155] And as the theory
of separation of powers prescribes, the Court does not pass upon questions of
wisdom, expediency and justice of legislation. To Us, petitioners and respondent
YPES in the fourth petition have not discharged the heavy burden of demonstrating
in a clear and convincing manner the unconstitutionality of the decrees challenged
or the invalidity of assailed acts of the President and the TRB. Because they failed
to do so, the Court must uphold the presumptive constitutionality and validity of
the provisions of the three decrees in question, and the subject contracts and TOCs.

Regarding petitioner Francisco’s Supplemental Petition, the toll rates, the


collection of which in the amount based on the formula and assumptions set forth
in the law, and the adverted STOA dated February 1, 2006 and subject of the TRO
issued on August 13, 2010, has been duly published[156] and approved by the TRB,
as required by Section 5 of P.D. 1112.[157] And the party-concessionaires have
adequately demonstrated, and the TRB has virtually acknowledged[158] that the said
rates subject of the TRO partake of the nature of opening or initial toll rates, which
have not yet been implemented since the time the SLTC STOA took effect.[159] To
note, the toll rates subject of the TRO were approved and are to be implemented in
connection with the new facility, such as Project Toll Roads 1 and 2 pursuant to
the new SLTC STOA and the expanded and rehabilitated SLEX. [160] As earlier
discussed, public hearing is not required in the fixing and implementation of initial
toll rates. But an interested party aggrieved by the initial rates imposed is not
without any resource as he may, within the time frame provided by Section 8 (b) of
P.D. 1894, repair to the TRB for review and thereafter to the OP.[161] As expressly
provided in the same section, however, the pendency of the petition for review, if
there be any, shall not suspend the enforceability and collection of the toll in
question. In net effect, the challenge before the Court of the SLEX toll rate
imposition is premature. However, the Court treats this Supplemental Petition
assailing the toll rates covered by the TRB Notice of Toll Rates published on June
6, 2010 as a petition for review filed under P.D. 1894, and hereby remands the
same to the TRB for a review of the questioned rates to determine the propriety
thereof.

WHEREFORE, the petitions in G.R. Nos. 166910 and 173630 are


hereby DENIED for lack of merit. Accordingly, We declare as VALID AND
CONSTITUTIONAL the following:

1. the Supplemental Toll Operation Agreement dated April 30, 1998


covering the North Luzon Tollway Project and the TRB Board
Resolution No. 2005-4 issued pursuant thereto;

2. the Supplemental Toll Operation Agreement dated November 27,


1995 covering the South Metro Manila Skyway and the TRB Board
Resolution No. 2004-53 and previous TRB resolutions issued pursuant
thereto;

3. the Supplemental Toll Operation Agreement covering the South


Luzon Tollway Project or South Luzon Expressway and the TRB
Board resolutions issued pursuant to the said agreement, particularly
the TRB Board resolutions allowing the toll rate increases that are
supposed to have been implemented on June 30, 2010;

4. Section 3, paragraph (a) of Presidential Decree No. 1112, otherwise


known as the “Toll Operation Decree,” in relation to Section 3,
paragraph (d) thereof and Section 8, paragraph (b) of Presidential
Decree No. 1894; and

5. Section 3, paragraph (e) 3 of P.D. No. 1112 and Section 13 of P.D.


No. 1894.

We however declare Clause 11.7 of the Supplemental Toll Operation


Agreement between the Republic of the Philippines, represented by respondent
TRB, as grantor, the Philippine National Construction Corporation, as franchisee,
and the Manila North Tollways Corporation (“MNTC”) dated April 30, 1998; and
the clause “including if necessary an extension of the CONCESSION PERIOD
which in no case shall exceed a maximum period of fifty (50) years” in Clause
17.5 of the same STOA, as VOID andUNCONSTITUTIONAL for being
contrary to Section 2, Article XII of the 1987 Constitution. We likewise declare
Clauses 8.08 (2) & (3) of the Supplemental Toll Operation Agreement between the
Republic of the Philippines, represented by respondent TRB, as grantor, the
Philippine National Construction Corporation as franchisee, the South Luzon
Tollway Corporation as investor, and the Manila Toll Expressway Systems, Inc. as
operator, dated February 1, 2006, as VOID and UNCONSTITUTIONAL.

The petition in G.R. No. 169917 is likewise hereby DENIED for lack of
merit. We declare as VALID and CONSTITUTIONAL the following:

1. Notice of Approval dated May 16, 1995 by former President Fidel V.


Ramos on the assignment of PNCC’s usufructuary rights;

2. the Joint Venture Agreement dated August 29, 1995;

3. the Joint Investment Proposal, etc. dated June 16, 1996;

4. the Supplemental Toll Operation Agreement (“STOA”) dated April


30, 1998 and the Notice of Approval of said STOA dated June 15,
1998 by former President Fidel V. Ramos; and

5. the provisional toll rate increases published February 9, 2005, granted


by the TRB.

The petition in G.R. No. 183599 is GRANTED. Accordingly, the Decision


dated June 23, 2008 of the Regional Trial Court, Branch 155 in Pasig City,
docketed as SCA No. 3138-PSG, annulling the TOC covering the SLEX, enjoining
the original toll operating franchisee from collecting toll fees in the SLEX, and
ordering the turnover of related assets to the Government, is
hereby REVERSED and SET ASIDE, and the petition filed therein by the Young
Professionals and Entrepreneurs of San Pedro, Laguna with the RTC of Pasig
is DISMISSED for lack of merit.

In view of the foregoing dispositions in the petitions at bar, the TRO issued
by the Court on August 13, 2010 is hereby ordered LIFTED, with respect to the
petitions in G.R. Nos. 166910, 169917, 173630 and 183599.

The challenge contained in the Supplemental Petition in G.R. No. 166910


against the toll rates subject of the TRB Notice of Toll Rates published on June 6,
2010, for the SLEX projects, Toll Road Projects 1 and 2 of the new SLTC STOA,
and the expanded and rehabilitated SLEX, is REMANDED to the TRB for a
review of the assailed toll rates to determine whether SLTC and MATES are
entitled to the toll fees.

No Cost.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

(On leave)
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

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


Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

(On leave)
ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO


Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court En Banc.

RENATO C. CORONA
Chief Justice


On leave.

[1]
Authorizing the Establishment of Toll Facilities on Public Improvements, Creating a Board for the Regulation
thereof and for other Purposes, P.D. 1112 [TOLL OPERATION DECREE], whereas clause (March 31, 1977).
[2]
See P.D. 1113, § 3.
[3]
Amending the Franchise of the [PNCC] to Construct, Maintain and Operate Toll Facilities in the North Luzon and
South Luzon Expressways to Include the Metro Manila Expressway to Serve as an Additional Artery in the
Transportation of Trade and Commerce in the Metro Manila Area, P.D. 1894, § 1.
[4]
What is involved when the usufruct is ceded are, inter alia, the right to collect and keep toll; operate, repair or
replace the toll collection system for the project toll roads; and provide continuing operation and maintenance during
the concession period.
[5]
P.D. 1113, § 8; P.D. 1894, § 13.
[6]
P.D. 1112, § 3 (e) (3).
[7]
PHILIPPINE CONSTITUTION, Art. XII, § 11.

SEC. 11. No franchise, certificate, or any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines at least sixty per centum of whose capital is owned by
such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for
a longer period than fifty years. Neither shall any such franchise or right be granted except under
the condition that it shall be subject to amendment, alteration or repeal by the Congress when the
common good so requires. The State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing body of any public utility
enterprise shall belimited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the Philippines.
[8]
Rollo (G.R. No. 166910), pp. 152-160.
[9]
Id. at 166-171; DOJ Opinion No. 79, s. 1994.
[10]
In the same way that the improvement of the SLEX would also be referred to as the South Luzon Tollway
project.
[11]
Rollo (G.R. No. 169917), pp. 194-196; MNTC STOA, clause 3.1.
[12]
Initial focus of the MOA are the full rehabilitation and construction of the Alabang viaduct and full rehabilitation
and expansion of the Alabang-Calamba Santo Tomas stretch.
[13]
Annex 14, SLTC’s and MATES’ Consolidated Comment/Opposition to the Supplemental Petition of petitioner
Francisco.
[14]
Sections 2.01 of the STOA.
[15]
Article VI, Section 1 of the Constitution provides that legislative power shall be vested in the Congress of
the Philippines x x x.
[16]
Annex 16, Consolidated Comment/Opposition to petitioner Francisco’s Supplemental Petition.
[17]
Annex 17, Consolidated Comment/Opposition to petitioner Francisco’s Supplemental Petition.
[18]
Id.
[19]
Rollo (G.R. No. 183599), pp. 58-70.
[20]
Rollo (G.R. No. 183599), p. 70.
[21]
Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401.
[22]
Muskrat v. U.S., 219 U.S. 346 (1913).
[23]
See Flast v. Cohen, 392 U.S. 83, 20 E Ed 2d 947, 88 S. Ct. 1942, 1950 (1968).
[24]
G.R. Nos. 183591, 183752, 183893 & 183591, October 14, 2008, 568 SCRA 402, 405 [citations omitted]; see
also PACU v. Secretary of Education, 97 Phil. 806, 810 (1955).
[25]
JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 939
(2003).
[26]
Id. at 939-40; citing People v. Vera, 65 Phil. 56, 89 (1937); Macasiano v. National Housing Authority, G.R. No.
107921, July 1, 1993, 224 SCRA 236.
[27]
Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740.
[28]
See Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.
[29]
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
[30]
Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152; Lim v. Executive Secretary,
G.R. No. 151445, April 11, 2002, 380 SCRA 739; IBP v. Zamora, G.R. No. 141284, August 15, 2000; Tatad v.
Secretary of the Department of Energy [DOE], G.R. Nos. 124360 & 127867, November 5, 1997, 281 SCRA
330; Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 137-38.
[31]
Tatad v. DOE, id. at 349; De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
[32]
Severino v. Governor General,16 Phil. 366, 371 (1910).
[33]
Del Mar v. PAGCOR, G.R. No. 138298, November 29, 2000, 346 SCRA 485, 503.
[34]
Metropolitan Cebu Water District v. Adala, G.R. No. 168914, July 4, 2007, 526 SCRA 465, 466.
[35]
Albano v. Reyes, G.R. No. 83561, July 11, 1989, 175 SCRA 264.
[36]
Id. at 264.
[37]
DOJ Opinion No. 1, s. 2006; Annex 15, Consolidated Comment/Opposition to supplemental petition.
[38]
Kilusang Mayo Uno Labor Center v. Garcia, Jr., G.R. No. 115381, Dec. 23, 1994, 239 SCRA 386, 405.
[39]
Id.
[40]
P.D. 1112, § 3, ¶ e.
[41]
Philippine Airlines, Inc. v. Civil Aeronautics Board, G.R. No. 119528, March 26, 1997, 270 SCRA 538.
[42]
Philippine Airlines, Inc., id. at 551.
[43]
Philippine Airlines, Inc., id. at 549-50.
[44]
See Tatad v. DOE, supra note 30, 349; De Guia v. COMELEC, supra note 31, at 422.
[45]
Philippine Airlines, Inc., supra note 41, at 550; citing Dyer v. Tuskaloosa Bridge Co., 2 Port. 296, 27 Am. D.
655; Christian Toda Tel. Co. v. Commonwealth, 161 S.W. 543, 156 Ky. 557, 37 C.J.S. 158.
[46]
Philippine Airlines, Inc., id.; citing Ynchausti Steamship Co. v. Public Utility Commissioner, 42 Phil. 642 (1923).
[47]
G.R. No. 178158, December 4, 2009, 607 SCRA 413, 492-94.
[48]
See STOA (Covering the South Metro Manila Skyway) among the Republic, PNCC and Citra Metro Manila
Tollways Corporation, November 27, 1995, Rollo (G.R. No. 166910), pp. 329-397; STOA (Covering the Manila-
North Expressway) among the Republic, PNCC and Manila North Tollways Corporation, April 1998, Rollo (G.R.
No. 169917), pp. 177-242.
[49]
See P.D. 1112, whereas clauses; P.D. 1113, whereas clauses; P.D. 1894, whereas clauses.
[50]
See e.g. Rollo (G.R. No. 169917), p. 243; see also Rollo (G.R. No. 169917), p. 106.
[51]
P.D. 1894, amending P.D. 1113.
[52]
P.D. 1113, § 3; P.D. 1894, § 6.
[53]
P.D. 1894, § 6. (Emphasis ours.)
[54]
16.06 Supplemental Effect – “This Agreement [STOA] is intended as a supplement to the [TRB-PNCC] TOA.
Accordingly, to the extent possible, both agreements should be regarded as one integrated instrument whose
provisions are fully consistent with each other; provided however, that in respect of the Project or any of the Project
Toll Roads, the provisions of this Agreement shall have primacy of application and shall be deemed to have
modified or replaced provisions of the TOA that is contrary or inconsistent with any provision of this Agreement.”
[55]
Strategic Alliance Development Corporation v. Radstock Securities Limited, supra note 47, at 494. (Emphasis in
the original.)
[56]
Id. at 495.
[57]
DOJ Opinion No. 122, s. 1995; Rollo (G.R. No. 169917), p. 363.
[58]
DOJ Opinion No. 1, s. 2006.
[59]
Strategic Alliance Development Corporation v. Radstock Securities Limited, supra note 47, at 495.
[60]
Id. at 494.
[61]
Id.
[62]
See supra.
[63]
Dated Aug. 20, 1990; reported in 188 SCRA 775.
[64]
The DPWH had jurisdiction over the TRB pursuant to E.O. No. 644 (July 30, 2007).
[65]
PNCC v. Republic, G.R. No. 89557, August 20, 1990, 188 SCRA 775, 790-91.
[66]
PNCC v. Court of Appeals, G.R. No. 104437, December 17, 1993, 228 SCRA 565.
[67]
Id. at 572.
[68]
Id. at 567 & 570.
[69]
Martir v. Verano, 497 SCRA 120, 126-27 (2006); citing Armed Forces of the Philippines Mutual Benefit
Association, Inc. v. Court of Appeals, G.R. No. 126745, July 26, 1999, 311 SCRA 143, 154-55.
[70]
In relation to G.R. No. 183599.
[71]
G.R. No. 166785, July 28, 2008, 560 SCRA 197, 198, 208-209.
[72]
Eastern Assurance & Surety Corporation (EASCO) v. Land Transportation and Franchising Regulatory Board
(LTFRB), G.R. No. 149717, October 7, 2003, 413 SCRA 75, 90.
[73]
Drilon v. Lim, 235 SCRA 135 (1994).
[74]
Entitled “Creating The Land Transportation Franchising And Regulatory Board.”
[75]
Sec. 5. Powers and Functions of the [LTFRB].—The Board shall have the following powers and functions:

a. To prescribe and regulate routes of service, economically viable capacities and zones or areas of
operation of public land transportation services provided by motorized vehicles xxxx;

b. To issue x x x or cancel x x x or permits authorizing the operation of public land transportation services
x x x and to prescribe the appropriate terms and conditions therefor;

c. To determine, prescribe and approve xxx reasonable fares, rates and other related charges, relative to the
operation of public land transportation services provided by motorized vehicles;
….
g. To conduct investigations and hearings of complaints for violation of the public service laws on land
transportation and of the Board's rules and regulations, orders, decisions and/or rulings and to impose fines
and/or penalties for such violations;

[76]
Entitled “Creating A Ministry Of Public Works And A Ministry Of Transportation And Communications.”
xxxx

Sec. 15. Functions of the Commission.—The Commission shall exercise the following functions:

a. Issue [CPC] for the operation of communications utilities and services, radio communications
systems, wire or wireless telephone or telegraph systems, radio and television broadcasting system
and other similar public utilities;

b. Establish, prescribe and regulate areas of operation of particular operators of public service
communications; and determine and prescribe charges or rates pertinent to the operation of such
public utility facilities and services except in cases x x x;

c. Grant permits for the use of radio frequencies for wireless telephone and telegraph systems and
radio communication systems including amateur radio stations and radio and television
broadcasting systems;

xxxx

g. Promulgate such rules and regulations, as public safety and interest may require, to encourage a
larger and more effective use of communications, radio and television broadcasting facilities, and
to maintain effective competition among private entities in these activities whenever the
Commission finds it reasonably feasible;

xxxx
[77]
An Act Ordaining Reforms in the Electric Power Industry, Amending for the Purpose Certain Laws and for
Other Purposes, R.A. 9136 [ELECTRIC POWER INDUSTRY REFORM ACT OF 2001], §§ 4 (w), 6, 8, 34, 38 & 43 (f).
[78]
Chamber of Real Estate and Builders’ Association, Inc. v. ERC and MERALCO, G.R. No. 174697, July 8, 2010.
[79]
C.T. Torres Enterprises, Inc. v. Hibionada, et al., G.R. No. 80916, November 9, 1990.
[80]
Sec. 8 of P.D. 1113 and Sec. 13 of P.D. 1894 each contains a similar provision but use the word “grantee”
instead of “toll operator” found in Sec. 3 of P.D. 1112, thus:

The grantee shall not lease, transfer, grant the usufruct of, sell or assign the franchise nor the
rights or privileges acquired thereby, x x x nor merge with any other company or corporation
without the prior approval of the President of the Philippines. x x x
.
[81]
G.R. No. 113375, May 5, 1994, 232 SCRA 110; citing 36 Am. Jur. 2D, Franchises, §63.
[82]
National Federation of Labor v. National Labor Relations Commission, G.R. No 127718, March 2, 2000, 327
SCRA 158, 165.
[83]
Padua v. Ranada, G.R. No. 141949, 390 SCRA 663, 679.
[84]
Padua v. Ranada, id. at 679; citing Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform, 175 SCRA 343 (1989).
[85]
Rollo (G.R. No. 169917), p. 217.
[86]
Id. at 46-47.
[87]
See supra; see e.g. Albano v. Reyes, supra note 35, at 264; Philippine Airlines, Inc., supra note 41, at 538, 549-
551.
[88]
See supra.
[89]
Albano v. Reyes, supra note 35, at 264.
[90]
Kilusang Mayo Uno, supra note 38, at 405.
[91]
Philippine Airlines, Inc., supra note 41, at 549-550.
[92]
P.D. 1112, § 3 (e).
[93]
P.D. 1113, § 3; P.D. 1894, § 6.
[94]
See supra; see also P.D. 1894, §§ 1 & 2.

SECTION 1. Any provision of law to the contrary notwithstanding, there is hereby granted to the
Philippine National Construction Corporation, a corporation duly organized and existing under by the virtue of
Philippine laws (hereinafter called the “GRANTEE”), the right, privilege and authority to construct, maintain and
operate the following expressways (hereinafter collectively called "the Expressways"), together with the toll
facilities appurtenant thereto:

(a) the North Luzon Expressway from Balintawak (Station 9 + 563) to Carmen, Rosales, Pangasinan;

(b) the South Luzon Expressway from Nichols, Pasay City (Station 10 + 540) to Lucena, Quezon;

(c) the Metro Manila Expressway, from Bicutan, Parañaque, Metro Manila (Station 18 +720) to Meycauayan,
Bulacan (approximate Station 63 + 290) with an approximate length of 44.570 km., to serve as an artery in
the transportation of trade and commerce in the Metropolitan Manila area.

The GRANTEE is hereby further granted the right, privilege and authority to construct, maintain and
operate any and all such extensions, linkages or stretches, together with the toll facilities appurtenant thereto, from
any part of the North Luzon Expressway, South Luzon Expressway and/or Metro Manila Expressway and/or to
divert the original route and change the original end-points of the North Luzon Expressway and/or South Luzon
Expressway as may be approved by the Toll Regulatory Board (any and all such extensions, linkages, stretches and
diversions hereinafter deemed included in the term “Expressways”).

SECTION 2. The term of the franchise provided under Presidential Decree No. 1113 for the North Luzon
Expressway and the South Luzon Expressway which is thirty (30) years from 1 May 1977 shall remain the same;
provided that, the franchise granted for the Metro Manila Expressway and all extensions linkages, stretches and
diversions that may be constructed after the date of approval of this decree shall likewise have a term of thirty (30)
years commencing from the date of completion of the project.
[95]
P.D. 1112, § 3 (e) (6).
[96]
17.4.1 The PARTIES acknowledge that following a Notice of Substitution under clauses 17.2 or 17.3 the
LENDERS have, subject to the provisions of Clause 17.4.3, the unrestricted right to appoint a SUBSTITUTED
ENTITY in place of MNTC following the declaration of the occurrence of a MNTC DEFAULT prior to full
repayment of the LOANS or of an event of default in respect of the LOANS. GRANTOR shall extend all
reasonable assistance to the AGENT to put in place a SUBSTITUTED ENTITY. MNTC shall make available all
necessary information to potential SUBSTITUTED ENTITY to enable such entity to evaluate the Project.
[97]
Rollo (G.R. No. 169917), pp. 227-228.
[98]
Id. at 228.
[99]
MNTC STOA, Clause 17.5, id. Rollo, G.R. No. 166917, at 228.
[100]
Id. at 184. Clause 1.1.1 “AGENT” – shall mean the authorized representative/s appointed by the LENDERS to
act and negotiate on their behalf with respect to the LOANS and to this AGREEMENT and notified to GRANTOR
by MNTC. Id. at 184.
[101]
Supra note 99.
[102]
P.D. 1112, § 3, ¶ e, P.D. 1113, § 3; P.D. 1894, § 6.
[103]
PHIL. CONST., Art. XII, § 11.
[104]
Rollo (G.R. No. 166917), p. 192.
[105]
PHIL. CONST., Art. XII, § 11.
[106]
Rollo (G.R. No. 169971), p. 507.
[107]
PHIL. CONST., Art. VI, § 29 (1).
[108]
Strategic Alliance Development Corporation v. Radstock Securities Limited, supra note 47, at 498.
[109]
Id. at 498-500.
[110]
SLTC STOA, 8.08 (2) & (3).
[111]
See e.g. MNTC STOA, 11.4 & 11.5; SLTC STOA, 8.06 & 8.08.

11.4 Periodic Adjustment.

11.4.1 The AUTHORIZED TOLL RATE shall be adjusted as provided in this Clause every two calendar years, the
first such adjustment to occur on the OPERATION DATE; Provided, However, that in the event that a delay in
completion of any relevant PHASE is attributable to MNTC, MNTC shall not be entitled to an additional adjustment
of the Initial AUTHORIZED TOLL RATE at the actual OPERATION DATE of the delayed phase.

11.4.2 The adjustment formula will be as follows:

1. Until the time the LOANS have been fully repaid but not later than 31 December 2013, the projected final
repayment date as per the PROJECT IMPLEMENTATION SCHEDULE and the FINANCIAL
PROJECTIONS:

ATRp = ATR0 x Ip

where:

ATRp = AUTHORIZED TOLL RATE for year p

ATR0 = Initial Reference AUTHORIZED TOLL RATE as defined in Clause 11.3.

Ip = Toll adjustment index for year p


= PCPIp Ep/E0
PCPI0 x (1 + Fc)p x [AP + BP x ( DP/D0 )]

PCPIP = Philippine Consumer Price Index for the month prior to filing the request for adjustment in year
p (or the last index available at that time)

USCPIp = USA Consumer Price Index for the month prior to filing the request for adjustment in year p (or
the last index available at that time)

PCPI0 = Base Philippine Consumer Price Index as defined in the FINANCIAL PROJECTIONS as
published by the Bangko Sentral ng Pilipinas as of 30 June 1995

USCPI0 = Base USA Consumer Price Index as defined in the FINANCIAL PROJECTIONS as of 30 June
1995

Ap = Percentage of total debt service (or debt outstanding if there is no debt service in that period) in
PESO during the period of six (6) months prior to filing the request for adjustment in year p

Bp = Percentage of total debt service (or debt outstanding if there is no debt service in that period) in
US$ during the period of six (6) months prior to filing the request for adjustment in year
p. Bp shall not exceet Fifty percent (50%) after the first adjustment of the AUTHORIZED TOLL
RATE made on OPERATION DATE.
Ep = Rolling average of US$ selling rate against PESO, as published by the Bangko Sentral ng
Pilipinas, for the period of six (6) months prior to filing the request for adjustment in year p

Dp = Consumer Price Index differential between Philippines and USA calculated as PCPIp / USCPIp

E0 = Base average of US$ selling rate against PESO, as published by the Bangko Sentral ng
Pilipinas as stated in the FINANCIAL PROJECTIONS as of 30 June 1995

D0 = Base Consumer Price Index differential between Philippines and USA calculated as PCPI0 /
USCPI0

Fc = One percent (1%) for the period up to the OPERATION DATE of the first PHASE including
the first adjustment of the TOLL RATE.

= One and one fourth of a percent (1.25%) for the period following the OPERATION DATE of
PHASE 1

2. From the time when the LOANS have been fully repaid not later than 31 December 2013:

PCPIp
ATRp = ATRp-1 x [ 1 + ( PCPIp-1 - 1 ) x 50% ]

where:

ATRp-1 = AUTHORIZED TOLL RATE for year p-1

If, for any reason, the Philippine Consumer Price Index as published by the National Statistics Office
ceases to be published or is not available in the month in question, the PARTIES shall use the index
published by the Bangko Sentral ng Pilipinas as substitute index for the purpose of effecting the above
calculation or, in case the latter index is also not published or available, another index agreed mutually by
the GRANTOR and MNTC.

11.4.3 Any such notice for adjustment to the AUTHORIZED TOLL RATE which results in the increase of the
existing AUTHORIZED TOLL RATE shall be published in a newspaper of general circulation no later than 30
November of the year in which it is calculated and shall become enforceable and be collected by MNTC on the first
day of January of the immediately succeeding year.

11.5 Interim Adjustment.

11.5.1 In addition to the Periodic Adjustment, (a) in the circumstances contemplated in Clauses 15 and 16, MNTC
shall be entitled to Interim Adjustment of the Initial Reference AUTHORIZED TOLL RATE provided under Clause
11.3 or the AUTHORIZED TOLL RATE provided under Clause 11.4, as compensation under such provisions, or
(b) when the rolling average over two months of either the Bangko Sentral ng Pilipinas foreign exchange selling rate
(PESO/US$) (‘Ep’ as defined below) has varied by ten percent (10%) as long as the Toll Rate Adjustment Formula
described in Clause 11.4.2.1 applies or the Consumer Price Index for the Philippines (‘PCPI p’ as defined below) has
varied by fifteen percent (15%) compared to the level of this rate and/or index to the level of Ep-1 and PCPIp-1,
respectively, MNTC shall be entitled to an adjustment of the Initial Reference AUTHORIZED TOLL RATE or
AUTHORIZED TOLL RATE after the first Periodic Adjustment.

11.5.2 Any proposal for an adjustment of the Initial Reference AUTHORIZED TOLL RATE or AUTHORIZED
TOLL RATE, as the case may be, pursuant to Clauses 15, 16 or 11.5.1 (b) hereof shall be submitted to GRANTOR,
with a supporting calculation. Such calculation shall be subject to verification and approval by GRANTOR.
11.5.3 Any such proposal for an interim adjustment in the Initial Reference AUTHORIZED TOLL RATE or
AUTHORIZED TOLL RATE as the case may be, which results in the increase of the existing AUTHORIZED
TOLL RATE shall be published in a newspaper of general circulation no later than 30 November of the year in
which it is calculated and shall become enforceable and be collected by MNTC on the first day of January of the
immediately succeeding year.

11.5.4 An Interim Adjustment shall, other than those made by reason of the occurrence of circumstances specified
under Clause 15 and 16, be considered as an advance to MNTC to be set off against future TOLL RATE Periodic
Adjustment;Provided, However, that in computing the amount to be set off against the foregoing advance, the time
value thereof shall be considered as recognized in the FINANCIAL PROJECTIONS.
[112]
P.D. 1112, § 3, ¶ d.
[113]
Padua v. Ranada, G.R. Nos. 141949 & 151108, October 14, 2002, 390 SCRA 663, 678-83.
[114]
Manila International Airport Authority v. Blancaflor, G.R. No. 157581, December 1, 2004, 445 SCRA 471,
479.
[115]
Manila International Airport Authority, id. at 479.
[116]
Manila International Airport Authority, id. at 479-480.
[117]
Executive Order No. 686 (December 19, 2007).
[118]
See P.D. 1894, § 8, ¶ b.
[119]
Within the period of 90 days after the date of publication of the initial toll rate.
[120]
Instituting the Administrative Code of 1987 [ADMINISTRATIVE CODE], Executive Order No. 292, book V, title 1,
subtitle B, chapter 4, § 22 (1) (1987).

Section 22. Authority to Examine Accounts of Public Utilities. -

(1) The [COA] shall examine and audit the books, records and accounts of public utilities in
connection with the fixing of rates of every nature, or in relation to the proceedings of the proper
regulatory agencies, for purposes of determining franchise taxes;
[121]
G.R. Nos. 166769 & 166818, December 6, 2006, 510 SCRA 455.
[122]
Heirs of Severina San Miguel v. Court of Appeals, et al., G.R. No. 136054, September 5, 2001.
[123]
ADMINISTRATIVE CODE, Book V, Title 1, subtitle B, Chapter 4, § 22 (3).
[124]
ADMINISTRATIVE CODE, Book V, Title 1, subtitle B, Chapter 4, § 22 (2).
[125]
See Manila Electric Company, Inc. v. Lualhati, 510 SCRA at 478.
[126]
MNTC STOA, Clause 11; CITRA STOA, Clause 7; SLTC STOA, Clauses 7-8.
[127]
P.D. 1112, § 3, ¶ d.
[128]
G.R. No. 84818, December 18, 1989, 180 SCRA 218.
[129]
P.D. 1112, § 3, ¶ d.
[130]
Rollo (G.R. No. 169971), pp. 214-217.
[131]
North Negros Sugar Co., Inc. v. Hidalgo, G.R. No. L-42334, October 31, 1936, 63 Phil. 664.
[132]
Ibid, citing City of St. Louis v. Creen, 7 Mo. App., 468, 476.
[133]
Id., citing Virginia Cañon Toll Road Co. v. People, 45 Pac., 396, 399; 22 Colo., 429; 37 L. R. A., 711.
[134]
North Negros Sugar Co., Inc., 63 Phil. 664; citing Board of Shelby County Commissioners v. Castetter, 33 N.
E., 986, 987; 7 Ind. App., 309.
[135]
Sec. 2 (o) – Reasonable rate of return on investments and operating and maintenance cost – The rate of return
that reflects the prevailing cost of capital in the domestic and international markets x x x Provided further that for
negotiated contracts for public utility projects which are monopolies, the rate of return on rate base shall be
determined by existing laws, which in no case shall exceed twelve per centum (12%).
[136]
Rollo (G.R. No. 166910), pp. 275-285.
[137]
Id. at 88. Petitioners quoted:
1. 17 August 1995 Board Meeting

The Board resolved that “(i)n the event that the Board decides on a hearing before the TOA
approval, this will mean delay in the start of the construction and considering that the President
has given instructions to accelerate the implementation of this project, the issue of the delay
should be raised to the President. If the Board conducts the hearing after the approval of the TOA,
this will allow construction to start soon and would eventually result in time savings. However, if
the rates are rejected in public hearing, then government may be considered in default.”
[138]
Id. at 219-226.
[139]
Id. at 225. The discussion went like this:

The representative of ADG Santos brought to the attention of the Board the latter’s position that if
the parametric formula is adopted, there shall be no default on the part of government in case no
toll rate adjustment is given. He further stated that if default is insisted by the proponent, ADG
Santos is recommending for the conduct of a public hearing before approval. ADG Santos further
suggested that before the contract is signed, the Board shall conduct a public hearing or solicit the
indorsement of MMDA. In the event that the Board decides on a hearing before the TOA
approval, this will mean delay in the start of construction and considering that the President has
given instructions to accelerate the implementation of this project, the issue of the delay should be
addressed to the President. If the Board conducts the hearing after the approval of the TOA, this
will allow construction to start soon and would eventually result in time savings. However, if
rates are rejected in the public hearing, then government may be considered in default.
[140]
Cuyegkeng v. Cruz, G.R. No. L-16263, July 26, 1960, 108 Phil. 1147.
[141]
Simon v. Civil Service Commission, G.R. No. 101251, November 5, 1992, 215 SCRA 410, 418.
[142]
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizens, subject to such
limitations as may be provided by law.
[143]
14.04 CONFIDENTIALITY. 1. None of the parties shall xxx without the consent of the other, divulge x x x any
of the contents of this Agreement or any information relating to the negotiation concerning the operations, contracts,
commercial or financial arrangements or affairs of the other parties hereto x x x.
[144]
Rollo (G.R. No. 166910), p. 392.
[145]
JOAQUIN G. BERNAS, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 337 (1996).
[146]
See Baldoza v. Judge Dimaano, A.M. No. 1120-MTJ, May 5, 1976, 17 SCRA 14.
[147]
See Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27; Legaspi v. Civil Service Commission,
G.R. No. 72119, May 29, 1987, 150 SCRA 530.
[148]
432 Phil. 7 (2002).
[149]
Dated June 11, 1978 entitled, “Prescribing Policies, Guidelines, Rules and Regulations for Government
Infrastructure Contracts”; Expressly repealed by R.A. 9184.
[150]
Rollo (G.R. No. 166910), pp. 820-821.
[151]
Choice of persons; the selection of persons satisfactory to one’s self for a position involving trust and
confidence in the other’s character.
[152]
De Agbayani, v. Philippine National Bank, G.R. No. L-23127, April 29, 1971, 38 SCRA 429-430.
[153]
Basco v. PAGCOR, G.R. Nos. 138298, November 29, 2000, 346 SCRA 485.
[154]
Angara v. Electoral Commission, G.R. No. 45081, July 15, 1936, 63 Phil. 139.
[155]
16 Am. Jur. 2d, Constitutional Law, Sec. 115, citing cases.
[156]
Annex 18-A-2, Consolidated Comment/Opposition to Supplemental Petition.
[157]
P.D. 1112, § 5.
[158]
See Annexes 18-A-2 & 18-C-2, supra wherein the TRB gave notice that any interested expressway user shall
have the right to file, within a period of ninety (90) days from the date of publication of the toll rate matrix, a
petition for review.
[159]
See Supplemental Petition of petitioner Francisco, at 18, Annex C.
[160]
Consolidated Comment/Opposition to petitioner Francisco’s Supplemental Petition, at 43-50, Annex 16.
[161]
See also Annex 18-C-2, Consolidated Comment/Opposition to petitioner Francisco’s Supplemental Petition.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 132231 March 31, 1998

EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,


vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

This is a petition for prohibition, seeking a reexamination of the validity of §11(b) of R.A. No.
6646, the Electoral Reforms Law of 1987, which prohibits mass media from selling or giving
free of charge print space or air time for campaign or other political purposes, except to the
Commission on Elections. 1Petitioners are candidates for public office in the forthcoming
elections. Petitioner Emilio M. R. Osmeña is candidate for President of the Philippines, while
petitioner Pablo P. Garcia is governor of Cebu Province, seeking reelection. They contend that
events after the ruling in National Press Club v. Commission on Elections 2 "have called into
question the validity of the very premises of that [decision]." 3

There Is No Case or Controversy to Decide,


Only an Academic Discussion to Hold

NPC v. COMELEC upheld the validity of §11(b) of R.A. No. 6646 against claims that it abridged
freedom of speech and of the press. 4 In urging a reexamination of that ruling, petitioners claim
that experience in the last five years since the decision in that case has shown the "undesirable
effects" of the law because "the ban on political advertising has not only failed to level the playing
field, [but] actually worked to the grave disadvantage of the poor candidate[s]" 5 by depriving them
of a medium which they can afford to pay while their more affluent rivals can always resort to
other means of reaching voters like airplanes, boats, rallies, parades, and handbills.

No empirical data have been presented by petitioners to back up their claim, however.
Argumentation is made at the theoretical and not the practical level. Unable to show the
"experience" and "subsequent events" which they claim invalidate the major premise of our
prior decision, petitioners now say "there is no need for 'empirical data' to determine whether
the political ad ban offends the Constitution or not." 6 Instead they make arguments from which
it is clear that their disagreement is with the opinion of the Court on the constitutionality of §11(b)
of R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in
that case. What is more, some of the arguments were already considered and rejected in
the NPC case. 7

Indeed, petitioners do not complain of any harm suffered as a result of the operation of the
law. They do not complain that they have in any way been disadvantaged as a result of the
ban on media advertising. Their contention that, contrary to the holding in NPC, §11(b) works
to the disadvantage of candidates who do not have enough resources to wage a campaign
outside of mass media can hardly apply to them. Their financial ability to sustain a long
drawn-out campaign, using means other than the mass media to communicate with voters,
cannot be doubted. If at all, it is candidates like intervenor Roger Panotes, who is running for
mayor of Daet, Camarines Norte, who can complain against §11(b) of R.A. No. 6646. But
Panotes is for the law which, he says, has "to some extent, reduced the advantages of
moneyed politicians and parties over their rivals who are similarly situated as ROGER
PANOTES." He claims that "the elimination of this substantial advantage is one reason why
ROGER PANOTES and others similarly situated have dared to seek an elective position this
coming elections." 8

What petitioners seek is not the adjudication of a case but simply the holding of an academic
exercise. And since a majority of the present Court is unpersuaded that its decision in NPC is
founded in error, it will suffice for present purposes simply to reaffirm the ruling in that
case. Stare decisis et non quieta movere. This is what makes the present case different from
the overruling decisions 9 invoked by petitioners.

Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in order to


clarify our own understanding of its reach and set forth a theory of freedom of speech.

No Ad Ban, Only a Substitution of


COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media

The term political "ad ban," when used to describe §11(b) of R.A. No. 6646, is misleading, for
even as §11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates space
and time in the media. There is no suppression of political ads but only a regulation of the
time and manner of advertising.

Thus, §11(b) states:

Prohibited Forms of Elections Propaganda. — In addition to the forms of election


propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspapers, radio broadcasting or television station, or other mass media,
or any person making use of the mass media to sell or to give free of charge print
space or air time for campaign or other political purposes except to the Commission
as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the campaign
period.

On the other hand, the Omnibus Election Code provisions referred to in §11(b) read:

Sec. 90. Comelec space. — The Commission shall procure space in at least one
newspaper of general circulation in every province or city: Provided, however, That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall be allocated, free of
charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC).

Sec. 92. Comelec time. — The Commission shall procure radio and television time to
be known as "Comelec Time" which shall be allocated equally and impartially among
the candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of
the campaign. (Sec. 46, 1978 EC)

The law's concern is not with the message or content of the ad but with ensuring media
equality between candidates with "deep pockets," as Justice Feliciano called them in his
opinion of the Court in NPC, and those with less resources. 10 The law is part of a package of
electoral reforms adopted in 1987. Actually, similar effort was made in 1970 to equalize the
opportunity of candidates to advertise themselves and their programs of government by requiring
the COMELEC to have a COMELEC space in newspapers, magazines, and periodicals and
prohibiting candidates to advertise outside such space, unless the names of all the other
candidates in the district in which the candidate is running are mentioned "with equal
prominence." The validity of the law was challenged in Badoy, Jr. v. COMELEC. 11 The voting was
equally divided (5-5), however, with the result that the validity of the law was deemed upheld.

There is a difference in kind and in severity between restrictions such as those imposed by
the election law provisions in question in this case and those found to be unconstitutional in
the cases cited by both petitioners and the Solicitor General, who has taken the side of
petitioners. In Adiong v.
COMELEC 12 the Court struck down a regulation of the COMELEC which prohibited the use of
campaign decals and stickers on mobile units, allowing their location only in the COMELEC
common poster area or billboard, at the campaign headquarters of the candidate or his political
party, or at his residence. The Court found the restriction "so broad that it encompasses even the
citizen's private property, which in this case is a privately-owned car." 13 Nor was there a
substantial governmental interest justifying the restriction.

[T]he constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article
II, Section 26 and Article XIII, Section 1 in relation to Article IX(c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal
significance. 14

Mutuc v. COMELEC 15 is of a piece with Adiong. An order of the COMELEC prohibiting the playing
of taped campaign jingles through sound systems mounted on mobile units was held to be an
invalid prior restraint without any apparent governmental interest to promote, as the restriction
did not simply regulate time, place or manner but imposed an absolute ban on the use of the
jingles. The prohibition was actually content-based and was for that reason bad as a prior
restraint on speech, as inhibiting as prohibiting the candidate himself to use the loudspeaker. So
is a ban against newspaper columnists expressing opinion on an issue in a plebiscite a content
restriction which, unless justified by compelling reason, is unconstitutional. 16

Here, on the other hand, there is no total ban on political ads, much less restriction on the
content of the speech. Given the fact that print space and air time can be controlled or
dominated by rich candidates to the disadvantage of poor candidates, there is a substantial
or legitimate governmental interest justifying exercise of the regulatory power of the
COMELEC under Art. IX-C, §4 of the Constitution, which provides:

The commission may, during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges,
or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsiding. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.

The provisions in question involve no suppression of political ads. The only prohibit the sale
or donation of print space and air time to candidates but require the COMELEC instead to
procure space and time in the mass media for allocation, free of charge, to the candidates. In
effect, during the election period, the COMELEC takes over the advertising page of
newspapers or the commercial time of radio and TV stations and allocates these to the
candidates.

Nor can the validity of the COMELEC take-over for such temporary period be
doubted. 17 In Pruneyard Shopping Center v. Robbins, 18 it was held that a court order compelling
a private shopping center to permit use of a corner of its courtyard for the purpose of distributing
pamphlets or soliciting signatures for a petition opposing a UN resolution was valid. The order
neither unreasonably impaired the value or use of private property nor violated the owner's right
not to be compelled to express support for any viewpoint since it can always disavow any
connection with the message.

On the other hand, the validity of regulations of time, place and manner, under well-defined
standards, is well-nigh beyond question. 19 What is involved here is simply regulation of this
nature. Instead of leaving candidates to advertise freely in the mass media, the law provides for
allocation, by the COMELEC, of print space and air time to give all candidates equal time and
space for the purpose of ensuring "free, orderly, honest, peaceful, and credible elections."

In Gonzales v. COMELEC, 20 the Court sustained the validity of a provision of R.A. No. 4880 which
in part reads:

Sec. 50-B. Limitation upon the period of Election Campaign or Partisan Political
Activity. — It is unlawful for any person whether or not a voter or candidate, or for any
group, or association of persons, whether or not a political party or political
committee, to engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately preceding an
election for any other elective public office.

The term "Candidate" refers to any person aspiring for or seeking an elective public
office, regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate.

The term "Election Campaign" or "Partisan Political Activity" refers to acts designed
to have a candidate elected or not or promote the candidacy of a person or persons to
a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other
groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or
candidate;

(b) Holding political conventions, caucuses, conferences, meetings,


rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or
against a candidate or party; . . .

In Valmonte v. COMELEC, 21 on the other hand, the Court upheld the validity of a COMELEC
resolution prohibiting members of citizen groups or associations from entering any polling place
except to vote. Indeed, §261(k) of the Omnibus Election Code makes it unlawful for anyone to
solicit votes in the polling place and within a radius of 30 meters thereof.

These decisions come down to this: the State can prohibit campaigning outside a certain
period as well as campaigning within a certain place. For unlimited expenditure for political
advertising in the mass media skews the political process and subverts democratic self-
government. What is bad is if the law prohibits campaigning by certain candidates because of
the views expressed in the ad. Content regulation cannot be done in the absence of any
compelling reason.

Law Narrowly Drawn to Fit


Regulatory Purpose

The main purpose of §11(b) is regulatory. Any restriction on speech is only incidental, and it
is no more than is necessary to achieve its purpose of promoting equality of opportunity in
the use of mass media for political advertising. The restriction on speech, as pointed out in
NPC, is limited both as to time and as to scope.

Petitioners and the dissenters make little of this on the ground that the regulation, which they
call a ban, would be useless any other time than the election period. Petitioners state: "[I]n
testing the reasonableness of a ban on mountain-skiing, one cannot conclude that it is
limited because it is enforced only during the winter season." 22 What makes the regulation
reasonable is precisely that it applies only to the election period. Its enforcement outside the
period would make it unreasonable. More importantly, it should be noted that a "ban on mountain
skiing" would be passive in nature. It is like the statutory cap on campaign expenditures, but is so
unlike the real nature of §11(b), as already explained.

Petitioners likewise deny that §11(b) is limited in scope, as they make another quaint
argument:

A candidate may court media to report and comment on his person and his programs,
and media in the exercise of their discretion just might. It does not, however, follow
that a candidate's freedom of expression is thereby enhanced, or less abridged. If
Pedro is not allowed to speak, but Juan may speak of what Pedro wishes to say, the
curtailment of Pedro's freedom of expression cannot be said to be any less limited,
just because Juan has the freedom to speak. 23

The premise of this argument is that §11(b) imposes a ban on media political advertising.
What petitioners seem to miss is that the prohibition against paid or sponsored political
advertising is only half of the regulatory framework, the other half being the mandate of the
COMELEC to procure print space and air time so that these can be allocated free of charge to
the candidates.

Reform of The Marketplace of Ideas,


Not Permissible?

Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception
that Art. IX-C, §4 mandates the absolute equality of all candidates regardless of financial
status, when what this provision speaks of is "equality of opportunity." In support of this
claim, petitioners quote the following from the opinion of the Court written by Justice
Feliciano:

The objective which animates Section 11(b) is the equalizing, as far as practicable, the
situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign "war chests." 24

The Court meant equalizing media access, as the following sentences which were omitted
clearly show:

Section 11(b) prohibits the sale or donation of print space and air time "for campaign
or other political purposes" except to the Commission on Elections ("Comelec").
Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the
Comelec to procure "Comelec space" in newspapers of general circulation in every
province or city and "Comelec time" on radio and television stations. Further, the
Comelec is statutorily commanded to allocate "Comelec space" and "Comelec time"
on a free of charge, equal and impartial basis among all candidates within the area
served by the newspaper or radio and television station involved. 25

On the other hand, the dissent of Justice Romero in the present case, in batting for an
"uninhibited market place of ideas," quotes the following from Buckley v. Valeo:

[T]he concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the
First Amendment which was designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people. 26

But do we really believe in that? That statement was made to justify striking down a limit on
campaign expenditure on the theory that money is speech. Do those who endorse the view
that government may not restrict the speech of some in order to enhance the relative voice of
others also think that the campaign expenditure limitation found in our election laws 27 is
unconstitutional? How about the principle of one person, one vote, 28 is this not based on the
political equality of voters? Voting after all is speech. We speak of it as the voice of the people —
even of God. The notion that the government may restrict the speech of some in order to enhance
the relative voice of others may be foreign to the American Constitution. It is not to the Philippine
Constitution, being in fact an animating principle of that document.

Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political equality.
Art. XIII, §1 requires Congress to give the "highest priority" to the enactment of measures
designed to reduce political inequalities, while Art. II, §26 declares as a fundamental principle
of our government "equal access to opportunities for public service." Access to public office
will be denied to poor candidates if they cannot even have access to mass media in order to
reach the electorate. What fortress principle trumps or overrides these provisions for political
equality?

Unless the idealism and hopes which fired the imagination of those who framed the
Constitution now appear dim to us, how can the electoral reforms adopted by them to
implement the Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are
part, be considered infringements on freedom of speech? That the framers contemplated
regulation of political propaganda similar to §11(b) is clear from the following portion of the
sponsorship speech of Commissioner Vicente B. Foz:

MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or


utilization of franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges or
concessions granted by the Government, there is a provision that during the election
period, the Commission may regulate, among other things, the rates, reasonable free
space, and time allotments for public information campaigns and forums among
candidates for the purpose of ensuring free, orderly, honest and peaceful elections.
This has to do with the media of communication or information. 29

On the Claim that the Reforms


Have Been Ineffectual

Petitioners contend that §11(b) is not a reasonable means for achieving the purpose for
which it was enacted. They claim that instead of levelling the playing field as far as the use of
mass media for political campaign is concerned, §11(b) has abolished it. They further claim
that §11(b) does not prevent rich candidates from using their superior resources to the
disadvantage of poor candidates.

All this is of course mere allegation. As stated in the beginning, what petitioners claim to be
the nation's experience with the law is merely argumentation against its validity. The claim
will not bear analysis, however. Assuming that rich candidates can spend for parades, rallies,
motorcades, airplanes and the like in order to campaign while poor candidates can only
afford political ads, the gap between the two will not necessarily be reduced by allowing
unlimited mass media advertising because rich candidates can spend for other propaganda
in addition to mass media advertising. Moreover, it is not true that §11(b) has abolished the
playing field. What it has done, as already stated, is merely to regulate its use through
COMELEC-sponsored advertising in place of advertisements paid for by candidates or
donated by their supporters.

It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is claimed that
people hardly read or watch or listen to them. Again, this is a factual assertion without any
empirical basis to support it. What is more, it is an assertion concerning the adequacy or
necessity of the law which should be addressed to Congress. Well-settled is the rule that the
choice of remedies for an admitted social malady requiring government action belongs to
Congress. The remedy prescribed by it, unless clearly shown to be repugnant to fundamental
law, must be respected. 30 As shown in this case, §11(b) of R.A. 6646 is a permissible restriction
on the freedom of speech, of expression and of the press.

Dissenting, Justice Panganiban argues that advertising is the most effective means of
reaching voters. He adverts to a manifestation of the COMELEC lawyer that the Commission
"is not procuring [Comelec Space] by virtue of the effects of the decision of this Honorable
Court in the case ofPhilippine Press Institute (PPI) vs. Comelec, 244 SCRA 272." 31

To be sure, this Court did not hold in PPI v. COMELEC that it should not procure newspaper
space for allocation to candidates. What it ruled is that the COMELEC cannot procure print
space without paying just compensation. Whether by its manifestation the COMELEC meant
it is not going to buy print space or only that it will not require newspapers to donate free of
charge print space is not clear from the manifestation. It is to be presumed that the
COMELEC, in accordance with its mandate under §11(b) of R.A. No. 6646 and §90 of the
Omnibus Election Code, will procure print space for allocation to candidates, paying just
compensation to newspapers providing print space.

In any event, the validity of a law cannot be made to depend on the faithful compliance of
those charged with its enforcement but by appropriate constitutional provisions. There is a
remedy for such lapse if it should happen. In addition, there is the COMELEC Time during
which candidates may advertise themselves. Resolution No. 2983-A of the COMELEC
provides:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station
operating under franchise shall grant to Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as
"Comelec Time", effective February 10, 1998 for candidates for President, Vice-
President and Senators, and effective March 27, 1998, for candidates for local elective
offices, until May 9, 1998. (Emphasis added).

Failure of Legislative Remedy Bespeaks


of More than Congressional Inaction

The fact is that efforts have been made to secure the amendment or even repeal of §11(b) of
R.A. No. 6646. No less than five bills 32 were filed in the Senate in the last session of Congress
for this purpose, but they all failed of passage. Petitioners claim it was because Congress
adjourned without acting on them. But that is just the point. Congress obviously did not see it fit
to act on the bills before it adjourned.

We thus have a situation in which an act of Congress was found by this Court to be valid so
that those opposed to the statute resorted to the legislative department. The latter
reconsidered the question but after doing so apparently found no reason for amending the
statute and therefore did not pass any of the bills filed to amend or repeal the statute. Must
this Court now grant what Congress denied to them? The legislative silence here certainly
bespeak of more than inaction.

Test for Content-Neutral Restrictions 33

In Adiong v. COMELEC 34 this Court quoted the following from the decision of the U.S. Supreme
Court in a case sustaining a Los Angeles City ordinance which prohibited the posting of
campaign signs on public property:

A government regulation is sufficiently justified if it is within the constitutional power


of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if
the incident restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673.
(City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118
[1984]) 35

This test was actually formulated in United States v. O'Brien. 36 It is an appropriate test for
restrictions on speech which, like §11(b), are content-neutral. Unlike content-based restrictions,
they are not imposed because of the content of the speech. For this reason, content-neutral
restrictions are tests demanding standards. For example, a rule such as that involved in Sanidad
v. COMELEC, 37 prohibiting columnists, commentators, and announcers from campaigning either
for or against an issue in a plebiscite must have a compelling reason to support it, or it will not
pass muster under strict scrutiny. These restrictions, it will be seen, are censorial and therefore
they bear a heavy presumption of constitutional invalidity. In addition. they will be tested for
possible overbreadth and vagueness.

It is apparent that these doctrines have no application to content-neutral regulations which,


like §11(b), are not concerned with the content of the speech. These regulations need only a
substantial governmental interest to support them. 38 A deferential standard of review will
suffice to test their validity.

Justice Panganiban's dissent invokes the clear-and-present-danger test and argues that
"media ads do not partake of the 'real substantive evil' that the state has a right to prevent
and that justifies the curtailment of the people's cardinal right to choose their means of
expression and of access to information." The clear-and-present-danger test is not, however,
a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful
student of constitutional law, it was originally formulated for the criminal law and only later
appropriated for free speech cases. For the criminal law is necessarily concerned with the
line at which innocent preparation ends and a guilty conspiracy or attempt begins. 39 Clearly, it
is inappropriate as a test for determining the constitutional validity of laws which, like §11(b) of
R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To
apply the clear-and-present-danger test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all that is needed.

The reason for this difference in the level of justification for the restriction of speech is that
content-based restrictions distort public debate, have improper motivation, and are usually
imposed because of fear of how people will react to a particular speech. No such reasons
underlie content-neutral regulations, like regulations of time, place and manner of holding
public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. Applying the O'Brien
test in this case, we find that §11(b) of R.A. No. 6646 is a valid exercise of the power of the
State to regulate media of communication or information for the purpose of ensuring equal
opportunity, time and space for political campaigns; that the regulation is unrelated to the
suppression of speech; that any restriction on freedom of expression is only incidental and
no more than is necessary to achieve the purpose of promoting equality.

The Court is just as profoundly aware as anyone else that discussion of public issues and
debate on the qualifications of candidates in an election are essential to the proper
functioning of the government established by our Constitution. But it is precisely with this
awareness that we think democratic efforts at reform should be seen for what they are:
genuine efforts to enhance the political process rather than infringements on freedom of
expression. The statutory provision involved in this case is part of the reform measures
adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills which
were consolidated into what is now R.A No. 6646 with near unanimity. The House of
Representatives, of which petitioner Pablo P. Garcia was a distinguished member, voted 96 to
1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it 19-0. 40
In his recent book. The Irony of Free Speech, Owen Fiss speaks of "a truth that is full of irony
and contradiction: that the state can be both an enemy and a friend of speech; that it can do
terrible things to undermine democracy but some wonderful things to enhance it as
well." 41 We hold R.A. No. 6646, §11(b) to be such a democracy-enhancing measure. For Holmes's
marketplace of ideas can prove to be nothing but a romantic illusion if the electoral process is
badly skewed, if not corrupted, by the unbridled use of money for campaign propaganda.

The petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Kapunan and Martinez, JJ., concur.

Separate Opinions

PUNO, J., separate concurring;

In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No. 6646 and
Resolution No. 2974 of the COMELEC implementing said law. They contend:

THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA


VIRES ON THE PART OF CONGRESS, AND VIOLATIVE OF THE VERY
CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT TO BE GROUNDED.

II

CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN


IS NOT LIMITED IN TIME AND SCOPE OF APPLICATION.

A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-


ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.

B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR


AS THE CANDIDATE'S FREEDOM TO EXPRESS THROUGH THE MASS MEDIA, IT IS
ABSOLUTE, ALL-EMCOMPASSING, COMPREHENSIVE AND UNLIMITED.

III

THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR
RESTRAINT, AND CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.
IV

THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE


THE DESIRED END.

A. INSTEAD OF "LEVELING THE PLAYING FIELD," INSOFAR AS THE


USE OF MASS MEDIA FOR POLITICAL PURPOSES IS CONCERNED,
THE POLITICAL AD BAN HAS ABOLISHED THE PLAYING FIELD.

B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN,


BECAUSE IT DOES NOT PREVENT THE RICH CANDIDATE FROM
USING HIS SUPERIOR RESOURCES TO THE UNDUE DISADVANTAGE
OF THE POOR CANDIDATE.

C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD


BAN BECAUSE ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN
ORDER TO PREVENT THE RICH CANDIDATE FROM TAKING UNDUE
ADVANTAGE OF HIS SUPERIOR RESOURCES.

THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED


ON MATTERS OF PUBLIC CONCERN.

VI

THERE IS NO NEED FOR "EMPIRICAL DATA" TO DETERMINE WHETHER THE


POLITICAL AD BAN OFFENDS THE CONSTITUTION OR NOT.

The Solicitor General and the petitioners-in-intervention likewise contend that section 11(b)
of R.A. No. 6646 is unconstitutional principally because it impairs freedom of speech and of
the press.

A quick glance at petitioners' arguments against section 11(b) of R.A. No. 6646 will show that
they are mere rehash of arguments in the NPC case. The lack of new arguments is a tribute to
the brilliant majority decision and equally enlightening dissenting opinions in said case
which petitioners now seek to reexamine. A repetition of the NPC rationale is thus
unnecessary.

I wish, however, to advert to the dissent of Madam Justice Romero which cites Buckley
v. Valeo, 1 a 1976 case where a divided us Supreme Court ruled that limits on campaign
expenditures violate the guarantee of freedom of speech. The essence of the Buckley ruling is
that "the concept that government may restrict the speech of some elements of society in order to
enhance the relative voice of others is wholly foreign to the First Amendment . . ." 2

A reading of American legal literature, however, will reveal that Buckley has been widely
criticized by libertarians because its pro-business thrust has pernicious effects on efforts to
achieve much needed electoral reforms. 3 Typical of the criticisms is the observation of wright
that the Buckley Court ". . . has given protection to the polluting effect of money in election
campaigns. As a result, our political system may not use some of its most powerful defenses
against electoral inequalities." 4 The barrage of criticisms caused the US Supreme Court to modify
its absolute support for free speech in Buckley. In the 1990 case of Austin v. Michigan State
Chamber of Commerce, 5 it upheld the constitutionality of a Michigan law that prohibited
corporations from using corporate treasury funds to support or oppose any candidate for office.
Retreating from Buckley, the Austin Court recognized the state's compelling interest in regulating
campaign expenditure. Writing for the majority, Mr. Justice Thurgood Marshall, an icon of
libertarians declared: "Michigan identified as a serious danger the significant possibility that
corporate political expenditures will undermine the integrity of the political process, and it has
implemented a narrowly tailored solution to that problem." In his concurring opinion, the last of
the libertarians in the US High Court, Mr. Justice Brennan, held: "In MCFL, we held that a
provision of the Federal Election Campaign Act of 1971 (FECA), . . . similar to the Michigan law at
issue here, could not be applied constitutionally to a small, anti-abortion advocacy group. In
evaluating the First Amendment challenge, however, we acknowledged the legitimacy of
Congress' concern that organizations that amass great wealth in the economic marketplace
should not gain unfair advantage in the political marketplace."

There is less reason to apply the discredited Buckley decision in our setting. Section 11(b) of
R.A. No. 6646 is based on provisions of our Constitution which have no counterparts in the
US Constitution. These provisions are:

Art. II, sec. 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law.

Art. XIII, sec. 1. The Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce social,
economic, andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

Art. IX (c) (4). The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits from the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including reasonable
equal rates therefor for public information campaigns and forms among candidates in
connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.

A member of the Constitutional Commission, now our distinguished colleague, Mr. Justice
Hilario Davide, Jr., well explained these new wrinkles in our Constitution, viz.:

xxx xxx xxx

Aware of the lamentable fact in the Philippines; no gap between these two
unavoidable extremes of society is more pronounced than that in the field of politics,
and ever mindful of the dire consequences thereof, the framers of the present
Constitution saw it fit to diffuse political power in the social justice provisions. Ours
has been a politics of the elite, the rich, the powerful and the pedigreed. The victory of
a poor candidate in an election is almost always an exception. Arrayed against the
vast resources of wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting chance. Of course, there have been isolated
instances — but yet so few and far between — when poor candidates made it. 6
He stressed that this thrust for political equality is an improvement of our past Constitutions
which merely sought to establish equality in the economic and social fields. 7

It is difficult to think why such an egalitarian law like Section 11(b) of R.A. No. 6646 should be
condemned when it equalizes the political opportunities of our people. The gap between the
perfumed few and the perspiring many in our country is galloping at a frightening pace. As
the cost of election spirals at an immoral speed, levers of the political power are wielded
more and more by the wealthy alone. The subject law attempts to break this control by
reducing the purchasing power of the peso of the rich in the political freemarket.

Political equality is a touchstone of democracy. The guaranty of freedom of speech should


not be used to frustrate legislative attempts to level the playing field in politics. R.A. No. 6646
does not curtail speech as it no more than prevents the abusive use of wealth by the rich to
frustrate the poor candidate's access to media. It seems to me self-evident that if Congress
can regulate the abuse of money in the economic market so can it regulate its misuse in the
political freemarket. Money talks in politics but it is not the specie of speech sanctified in our
Constitution. If we allow money to monopolize media, the political freemarket will cease to be
a market of ideas but a market for influence by the rich. I do not read freedom of speech as
meaning more speech for the rich for freedom of speech is not guaranteed only to those who
can afford its exercise. There ought to be no quarrel with the proposition that freedom of
speech will be a chimera if Congress does not open the opportunities for its exercise. When
the opportunities for its exercise are obstructed by the money of the rich, it is the duty of
Congress to regulate the misuse of money — for in the political marketplace of ideas, when
money win, we lose.

Let us not also close our eyes to the reality that in underdeveloped countries where sharp
disparities in wealth exist, the threat to freedom of speech comes not only from the
government but from vested interests that own and control the media. Today, freedom of
speech can be restrained not only by the exercise of public power but also by private power.
Thus, we should be equally vigilant in protecting freedom of speech from public and private
restraints. The observation of a legal scholar is worth meditating, viz.: "With the development
of private restraints on free expression, the idea of a free marketplace where ideas can
compete on their merits has become just as unrealistic in the twentieth century as the
economic theory of perfect competition. The world in which an essentially rationalist
philosophy of the first amendment was born has vanished and what was rationalism is now
romance." 8

I vote to dismiss the petitions.

Melo, J., concurs.

VITUG, J., separate opinion;

I share the opinion of those who continue to uphold the decision in the National Press Club
vs.Commission on Elections case that has sustained the validity of Section 11(b) of Republic
Act ("R.A.") No. 6646, otherwise also known as the Electoral Reforms Law of 1987.

Petitioners, in seeking a re-examination of the decision of this Court in the National Press
Club case, no more than invoke anew Section 4, Article III, of the Constitution to the effect
that —
No law shall be passed abridging the freedom of speech, of expression, or of press,
on the right of the people peaceably to assemble and petition the government for
redress of grievances.

It is their submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of Comelec
Resolution No. 2974 should be declared unconstitutional. These contested provisions state:

Sec. 11. Prohibited forms of election propaganda. — In addition to the forms of


election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall
be unlawful;

xxx xxx xxx

b) for any newspapers, radio broadcasting or television station, other mass media, or
any person making use of the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to the Commission as
provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the campaign
period.

Sec. 18. Prohibited forms of election propaganda. — It is unlawful

xxx xxx xxx

e. For any radio broadcasting or television station or any person making use of
broadcast media to sell or give, free of charge, any air time for campaign and other
political purposes, except thru "COMELEC Time," allotted to the Commission
pursuant to Section 92 of the Omnibus Election Code.

I see, however, in the above provisions a faithful compliance and due observance of the
language, intent and spirit of the Constitution itself, Article IX(C)(4) of which reads:

Sec. 4. The Commission [on Elections] may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful,
and credible elections. (Emphasis supplied.)

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of
the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general application, must yield to the
specific demands of the Constitution. The freedom of expression concededly holds, it is true,
a vantage point in the hierarchy of constitutionally-enshrined rights but, like all fundamental
rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful"
and the "weak" in our society but it is to me a genuine attempt on the part of Congress and
the Commission on Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life to the candidates' right of
free expression rather than being viewed as an undue restriction of that freedom. The
wisdom in the enactment of the law, i.e., that which the legislature deems to be the best in
giving life to the Constitutional mandate, is not for the Court to question; it is a matter that
lies beyond the normal prerogatives of the Court to pass upon.

I vote to dismiss the petition.

Melo and Purisima, JJ., concur.

ROMERO, J., dissenting;

A foolish consistency is the hobgoblin of little minds . . . . 1

Not wishing to be held hostage by Emerson's "hobgoblin," I dare to break away from a past
position and encapsulize my ruminations in a dissenting opinion.

When, If At All, May The Court Reverse Itself?

The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section 11(b) of R.A.
6646 is a reasonable restriction on the freedom of expression guaranteed by the
Constitution. 2 Our six-year experience with the ban on political advertisements, however,
constrains me to dissent. While it is desirable, even imperative, that this Court, in accordance with
the principle of stare decisis, afford stability to the law by hewing to doctrines previously
established, said principle was never meant as an obstacle to the abandonment of established
rulings where abandonment is demanded by public interest and by circumstances. 3 Reverence for
precedent simply as precedent cannot prevail when constitutionalism and public interest demand
otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or
modified accordingly. More pregnant than anything else is that the court should be right. 4

I submit that our country's past experience in the 1992 and 1995 elections, as well as
contemporary events, has established that Section 11(b) of R.A. 6646 falls short of the
rigorous and exacting standard for permissible limitation on free speech and flee press.

In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section 11(b),
pronouncing the same to be authorized by Article IX(C), Section 4 of the Constitution which
reads:

Sec. 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forms among candidates in connection with the
objective of holding free, orderly, honest, peaceful and credible elections.
Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution, is
essentially an express manifestation of the comprehensive police power of the State.

Police power, it has been declared often enough, rests upon public necessity and upon the
right of the state and the public to self-protection. For this reason, its scope expands and
contracts with changing needs. 5 In the words of Mr. Justice Isagani A. Cruz:

Police power is dynamic, not static, and must move with the moving society it is
supposed to regulate. Conditions change, circumstances vary; and to every such
alteration the police power must conform. What may be sustained as a valid exercise
of the power now may become constitutional heresy in the future under a different
factual setting. Old notions may become outmoded even as new ideas are born,
expanding or constricting the limits of the police power. For example, police
measures validly enacted fifty years ago against the wearing of less than sedate
swimsuits in public beaches would be laughed out of court in these days of
permissiveness. . . (T)he police power continues to change even as constraints on
liberty diminish and private property becomes more and more affected with public
interest and therefore subject to regulation" (Emphasis ours). 6

Thus, when the temper and circumstances of the times necessitate a review, this Court
should not hesitate to reverse itself, even on constitutional issues; for the legal problems
with which society is beset continually cannot be merely considered in the abstract, but must
be viewed in light of the infinite motley facets of human experience. As aptly stated by Mr.
Justice Holmes, "The life of the law has not been logic: it has been experience."

By way of illustration, we first held, in the celebrated Flag Salute Case, 7 that:

the flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which
it and the Constitution guarantee and protect. Under a system of complete separation
of church and state in the government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious ceremony. The flag
salute is no more a religious ceremony than the taking of an oath of office by a public
official or by a public candidate for admission to the bar.

xxx xxx xxx

The children of Jehovah's Witnesses cannot be exempted from participation in the


flag ceremony. They have no valid right to such exemption. Moreover, exemption to
the requirement will disrupt school discipline and demoralize the rest of the school
population which by far constitute the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent authority.

The Court further predicted that exempting Jehovah's Witnesses from participating in the flag
ceremony would ultimately lead to a situation wherein:

[T]he flag ceremony will become a thing of the past or perhaps conducted with very
few participants, and the time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism-a pathetic, even tragic situation, and all
because a small portion of the school population imposed its will, demanded and was
granted an exemption.

Thirty-two years later, events caught up with the changing political climate, such that an
undivided Court pronounced, in Ebralinag v. The Division Superintendent of Schools of
Cebu 8 that:

the idea that one may be compelled to salute the flag, sing the national anthem, and
recite the patriotic pledge, during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their
right to free speech and the free exercise of religious profession and worship.

xxx xxx xxx

The sole justification for a prior restraint or limitation on the exercise of religious
freedom is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent. Absent such
a threat to public safety, the expulsion of petitioners from the schools is not justified.

The Court held that its earlier prediction of dire consequences had not come to pass. It
concluded that exempting Jehovah's Witnesses from attending flag ceremonies would not
produce a nation "untaught and uninculcated in and not imbued with reverence for the flag
and love of country, admiration for national heroes, and patriotism."

In much the same manner, in the early case of People v. Pomar, 9 the Court struck down as
violative of the freedom of contract, a statute prescribing a thirty-day vacation with pay both
before and after confinement arising from pregnancy. The Court said:

The rule in this jurisdiction is, that the contracting parties may establish any
agreements, terms, and conditions they may deem advisable, provided they are not
contrary to law, morals or public policy.

Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled that
the right to contract about one's affairs is a part of the liberty of the individual guaranteed by
the due process clause. The Court also cited the "equality of right" principle, holding that
"(i)n all such particulars the employer and the employee have equality of right, and any
legislation that disturbs that equality is an arbitrary interference with the liberty of contract,
which no government can legally justify in a free land . . . Police power, the Court conceded,
is an expanding power; but it cannot grow faster than the fundamental law of the state . . . If
the people desire to have the police power extended and applied to conditions and things
prohibited by the organic law, they must first amend that law. 10

Sixteen years later, the validity of the above pronouncement was rejected by the Court
in Antamok Goldfields Mining Co. v. CIR, 11 which rationalized its volte-face stance, thus: "(i)n
the midst of changes that have taken place, it may likewise be doubted if the pronouncement
made by this court in the case of People v.Pomar . . . still retains its virtuality as a living principle.
The policy of laissez faire has to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with public interests."
Similarly, events subsequent to the Court's ruling in Avelino v. Cuenco 12 impelled the Court to
reverse its original position. In this case, the Court initially refused to take cognizance of the
raging controversy to determine who was the rightful president of the Philippine Senate, ruling
that in view of the separation of powers, the question was a political one not within its jurisdiction.
Despite such a ruling, almost one-half of the members of the Senate refused to acknowledge
Mariano Cuenco as the acting President, as a result of which legislative work came to a standstill.
In the words of Justice Perfecto, "the situation has created a veritable national crisis, and it is
apparent that solution cannot be expected from any quarter other than this Supreme Court. . . .
The judiciary ought to ripen into maturity if it has to be true to its role as spokesman of the
collective conscience, of the conscience of humanity." The Court, thus, assumed jurisdiction over
the case, rationalizing that supervening events justified its intervention.

From the foregoing, it can be seen that the inexorable march of events, and the liberalizing
winds of change may very well signal a needed shift in our conception of the permissible
limits of regulation in the name of police power. Verily, while the validity of NPC
v. COMELEC may have been etched on granite at the time of its promulgation, events
subsequent thereto now call into question the very underpinnings of said ponencia. To my
mind, the hoary maxim that "time upsets many fighting faiths" still holds true, and the Court
must be ever resilient and adaptable in order to meet the protean complexities of the present
and future generation.

In NPC v. COMELEC, the Court held that:

(N)o presumption of invalidity arises in respect of exercises of supervisory or


regulatory authority on the part of the Comelec for the purpose of securing equal
opportunity among candidates for political office, although such supervision or
regulation may result in some limitation of the right of free speech and free press. For
supervision or regulation of the operations of media enterprises is scarcely
conceivable without such accompanying limitation. Thus, the applicable rule is the
general, time-honored one — that a statute is presumed to be constitutional and that
the party asserting its unconstitutionality must discharge the burden of clearly and
convincingly proving that assertion.

This upends the familiar holding that "any system of prior restraint of expression comes to
this Court bearing a heavy presumption against its constitutional validity, with the
Government carrying a heavy burden of showing justification for the enforcement of such a
restraint." 13 This presumption was even reiterated in the recent case of Iglesia ni Cristo
v. CA, 14 wherein we ruled that "deeply ensconced in our fundamental law is its hostility against all
prior restraints on speech . . . Hence, any act that restrains speech is hobbled by the presumption
of invalidity and should be greeted with furrowed brows. It is the burden of the respondent . . . to
overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck
down." NPC v. COMELEC, insofar as it bestows a presumption of validity upon a statute
authorizing COMELEC to infringe upon the right of free speech and free press, constitutes a
departure from this Court's previous rulings as to mandate its re-examination.

In this connection, it bears emphasis that NPC v. COMELEC was the product of a divided
court, marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez, and Paras.
This fact gains significance when viewed in light of the changes in the composition of the
court. While a change in court composition, per se, does not authorize abandonment of
decisional precedents, it is apropos to keep in mind the pronouncement by the Court
in Philippine Trust Co. and Smith, Bell and Co. v. Mitchell. 15which reads as follows:
Is the court with new membership compelled to follow blindly the doctrine of the
Velasco case? The rule of stare decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But idolatrous reverence for precedent,
simply as precedent, no longer rules. More important than anything else is that the
court should be right. (Emphasis ours)

Are The Restrictions Imposed by Sec. 11(b) Of R.A.


6646 on Freedom of Expression Valid?

Preliminaries having been disposed of, we proceed to the crux of the matter. Freedom of
speech has been defined as the liberty to know, to utter and to argue freely according to
conscience, above all liberties. It thus includes, not only the right to express one's views, but
also other cognate rights relevant to the free communication of ideas, not excluding the right
to be informed on matters of public concern.

The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on the
freedom of expression, to be valid. First, the prohibition is limited in the duration of its
applicability and enforceability to election periods. Precisely, this is what makes the
prohibition more odious. It is imposed during the campaign period when the electorate
clamors for more and accurate information as their basis for intelligent voting. To restrict the
same only defeats the purpose of holding electoral campaigns — to inform the qualified voter
of the qualifications of candidates for public office, as well as the ideology and programs of
government and public service they advocate, to the end that when election time comes, the
right of suffrage may be intelligently and knowingly, if not always wisely, exercised. Opening
all avenues of information to the estimated 36.4 million voters is crucial for their intelligent
exercise of the right of suffrage in the May 11 polls, considering that they will be voting for an
average of thirty elective positions. 16

Second, the prohibition is of limited application, as the same is applied only to the purchase
and sale of print space and air time for campaign or other political purposes. "Section 11(b)
does not purport in any way to restrict the reporting by newspapers or radio or television
stations of news or newsworthy events relating to candidates, their qualifications, political
parties and programs of government." It does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in
respect of candidates, their qualifications, and programs and so forth. To be sure,
newspapers, radio, and television stations may not be restricted from reporting on
candidates, their qualifications, and programs of government, yet, admittedly, the freedom of
expression of the candidates themselves in the manner they choose to, is restricted.
Candidates are thereby foreclosed from availing of the facilities of mass media, except
through the filtering prism of the COMELEC.

Not to be overlooked is the stark truth that the media itself is partisan. In a
study 17 commissioned by the COMELEC itself to determine whether certain newspapers adhered
to the principles of fairness and impartiality in their reportage of the presidential candidates in the
1992 elections, the results disclosed that newspapers showed biases for or against certain
candidates. Hence, the contention that "Section 11(b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications and platforms and promises" simply
is illusory. Editorial policy will always ensure that favored candidates receive prominent coverage
while less favored ones will get minimal exposure, if at all. This underscores the need to give
candidates the freedom to advertise, if only to counteract negative reporting with paid
advertisements, which they cannot have recourse to with the present prohibition. Worse, the ban
even encourages corruption of the mass media by candidates who procure paid hacks,
masquerading as legitimate journalists, to sing them paeans to the high heavens. Wittingly or
unwittingly, the mass media, to the detriment of poor candidates, occasionally lend themselves to
the manipulative devices of the rich and influential candidates.

Finally, it is alleged that while Section 11(b) prohibited the sale or donation by mass media of
print space or air time for campaign or other political purposes, COMELEC, by way of
exception, was mandated to purchase print space or air time, which space and time it was
required to allocate, equally and impartially, among the candidates for public office. Hence,
whatever limitation was imposed by Section 11(b) upon the right to free speech of the
candidates was found not to be unduly repressive or unreasonable inasmuch as they could
still realize their objective as long as it was coursed through COMELEC. COMELEC it was
that shall decide what, who, which media to employ and the time allocation for the candidates
who signify their desire to avail of the agency's air time and print space. Why accord to
COMELEC such powers in the name of supervision and regulation at the expense of the
constitutionally hallowed freedom of expression?

Given the conditions then prevailing, the Court's ruling in NPC v. COMELEC may have been
valid and reasonable; yet today, with the benefit of hindsight, it is clear that the prohibition
has become a woeful hindrance to the exercise by the candidates of their cherished right to
free expression and concomitantly, a violation of the people's right to information on matters
of public concern. As applied, it has given an undue advantage to well-known popular
candidates for office.

In the hierarchy of fundamental civil liberties, the right of free expression occupies a
preferred position, 18 the sovereign people recognizing that it is indispensable in a free society
such as ours. Verily, one of the touchstones of democracy is the principle that free political
discussion is necessary if government is to remain responsive to the will of the people. It is a
guarantee that the people will be kept informed at all times sufficiently to discharge the awesome
responsibilities of sovereignty.

Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or
privilege of free speech and publication has its limitations, the right not being absolute at all
times and under all circumstances. For freedom of speech does not comprehend the right to
speak whenever, however, and wherever one pleases, and the manner, and place, or time of
public discussion can be constitutionally controlled. 19

Still, while freedom of expression may not be immune from regulation, it does not follow that
all regulation is valid. Regulation must be reasonable as not to constitute a repression of the
freedom of expression. First, it must be shown that the interest of the public generally, as
distinguished from that of a particular class requires such regulation. Second, it must appear
that the means used are reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals.

As to the first, in NPC v. COMELEC, this Court declared that the ban on political advertising
aims to assure equality of opportunity to proffer oneself for public service by equalizing, as
far as practicable, the situations of rich and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign "war chests."

While there can be no gainsaying the laudable intent behind such an objective, the State
being mandated to guarantee equal access to opportunities for public service, the prohibition
has had the opposite effect. Instead of "equalizing" the position of candidates who offer
themselves for public office, the prohibition actually gives an unfair advantage to those who
have had wide media exposure prior to the campaign period. Instead of promoting the
interests of the public in general, the ban promotes the interest of a particular class of
candidates, the prominent and popular candidates for public office. What is in store for the
relatively obscure candidate who wants to pursue his candidacy? Eager to trumpet his
credentials and program of government, he finds himself barred from using the facilities of
mass media on his own. While incumbent government officials, show business personalities,
athletes and prominent media men enjoy the advantage of name recall due to past public
exposure, the unknown political neophyte has to content himself with other fora, which,
given the limited campaign period, cannot reach the electorate as effectively as it would
through the mass media. To be sure, the candidate may avail himself of "COMELEC Space"
and "COMELEC Time," but the sheer number of candidates does not make the same an
effective vehicle of communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral
Argument held by the Court en banc, admitted that no candidate has as yet applied for
COMELEC air time and space.

More telling, the celebrities are lavished with broader coverage from newspapers, radio and
television stations, as well as via the commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or columnists, as they are deemed more
newsworthy by media, thus generating a self-perpetuating cycle wherein political unknowns,
who may be more deserving of public office, campaign in relative obscurity compared to their
more popular rivals. Instead of equalizing opportunities for public service, the prohibition not
only perpetuates political inequality, but also invidiously discriminates against lesser-known
candidates.

While Article IX(C), Section 10 of the Constitution provides that "(b)ona fide candidates for
any public office shall be free from any form of harassment and discrimination," Article IX(C),
Section 4 is nothing if not antithetical to the former provision as, in its application, it is
productive of a situation wherein political neophytes are blatantly discriminated against.
Much as we recognize the basic canon in Constitutional construction that the Constitution
must be interpreted in such a way as to harmonize all its provisions if the Charter is to be
construed as a single, comprehensive document and not as a series of disjointed articles or
provisions, the predictable effect is for one provision to negate the other.

As to the second requisite, experience shows that the ban on political advertisements has
not been reasonably necessary to accomplish its desired end. First, there are more than 70
provinces, more than 60 cities and more than a thousand municipalities spread all over the
archipelago. Previous elections have shown that the ban on political advertising forces a
candidate to conduct a nationwide whistle-stop campaign to attain maximum exposure of his
credentials and his program of government. Obviously, this necessitates tremendous
resources for sundry expenses indispensable for political campaigns, all within a limited
period of 90 days. Given the enormous logistics needed for such a massive effort, what are
the chances for an impecunious candidate who sincerely aspires for national office?

On the other hand, radio and television reach out to a great majority of the populace more
than other instruments of information and dissemination, being the most pervasive, effective,
and inexpensive. A 30-second television advertisement, costing around P35,000.00 at present
rates, would, in an instant, reach millions of viewers around the country in the comfort of
their homes. Indeed, the use of modern mass media gives the poor candidate the opportunity
to make himself known to the electorate at an affordable cost. Yet, these means of
communication are denied such candidates due to the imagined apprehension that more
affluent candidates may monopolize the airwaves. This fear, however, need not materialize as
the COMELEC is precisely empowered to regulate mass media to prevent such a monopoly.
Likewise, the ceiling on election spending imposed by law upon all candidates, regardless,
will also serve as a deterrent.
Second, the means employed is less than effective, for with or without the ban, moneyed
candidates, although similarly barred from buying mass media coverage, are in a position to
lavish their funds on other propaganda activities which their lesser-endowed rivals can ill-
afford. Furthermore, we take judicial notice of the inability of COMELEC to enforce laws
limiting political advertising to "common poster areas." Many places in cities have been
ungainly plastered with campaign materials of the better off candidates. What use is there in
banning political advertisements to equalize the situation between rich and poor candidates,
when the COMELEC itself, by its failure to curb the political excesses of candidates,
effectively encourages the prevailing disparities? Why then single out political advertising?
What is the reasonable necessity of doing so?

To be realistic, judicial notice must be taken of the fact that COMELEC, in narrowing down its
list of "serious" candidates, considers in effect a candidate's capability to wage an effective
nationwide campaign — which necessarily entails possession and/or availability of
substantial financial resources. Given this requirement, the objective of equalizing rich and
poor candidates may no longer find relevance, the candidates ultimately allowed to run being
relatively equal, as far as resources are concerned. Additionally, the disqualification of
nuisance candidates, allegedly due to their inability to launch serious campaigns, itself casts
doubt on the validity of the prohibition as a means to achieve the state policy of equalizing
access to opportunities for public service. If poor and unknown candidates are declared unfit
to run for office due to their lack of logistics, the political ad ban fails to serve its purpose, as
the persons for whom it has been primarily imposed have been shunted aside and thus, are
unable to enjoy its benefits.

It must be kept in mind that the holding of periodic elections constitute the very essence of a
republican form of government, these being the most direct act and participation of a citizen
in the conduct of government. In this process, political power is entrusted by him, in concert
with the entire body of the electorate, to the leaders who are to govern the nation for a
specified period. To make this exercise meaningful, it is the duty of government to see to it
that elections are free and honest and that the voter is unhampered by overt and covert
inroads of fraud, force and corruption so that the choice of the people may be untrammelled
and the ballot box an accurate repository of public opinion. And since so many
imponderables may affect the outcome of elections — qualifications of voters and
candidates, education, means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter's resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly, association and organizations,
both by the candidate and the voter, becomes a sine qua non for elections to truly reflect the
will of the electorate.

With the prohibition on political advertisements except through the Comelec space and time,
how can a full discussion of men, issues, ideologies and programs be realized? Article III,
Section 4 of the Constitution provides that "(n)o law shall be passed abridging the freedom of
speech, of expression, of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances." Implicit in this guarantee is the right of
the people to speak and publish their views and opinions on political and other issues,
without prior restraint and/or fear of subsequent punishment. Yet Section 11(b), by
authorizing political advertisements only via the COMELEC effectively prevents the
candidates from freely using the facilities of print and electronic mass media to reach the
electorate. A more blatant form of prior restraint on the free flow of information and ideas can
hardly be imagined. To be sure, it does not constitute an absolute restriction, but it is
restriction nonetheless, as odious and insidious as any that may be conceived by minds
canalized in deepening grooves.
I hold that, given our experience in the past two elections, political advertisements on radio
and television would not endanger any substantial public interest. Indeed, allowing
advertisements would actually promote public interest by furthering public awareness of
election issues. The objective, equalizing opportunities for public service, while of some
immediacy during election times, does not justify curtailing the citizen's right of free speech
and expression.

Not only must the danger be patently clear and pressingly present but the evil sought
to be avoided must be so substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled. For these reasons, any attempt to restrict these
liberties must be justified by clear public interest, threatened not doubtfully or
remotely but by clear and present danger. The rational connection between the
remedy provided and the evil to be curbed, which in other context might support
legislation against attack on due process grounds, will not suffice. These rights rest
on firmer foundation. Accordingly, whatever occasion would restrain orderly
discussion and persuasion, at appropriate time and place, must have clear support in
public danger, actual or impending. Only the greatest abuses, endangering permanent
interests, give occasion for permissible limitation. 20

No such clear and present danger exists here as to justify banning political advertisements
from radio and television stations.

Past experience shows that the COMELEC has been hard put effectively informing the voting
populace of the credentials, accomplishments, and platforms of government of the
candidates. There are 17,396 national and local elective public positions 21 which will be
contested by an estimated 100,000 candidates 22 on May 11, 1998. For national positions, the list
has been trimmed down to 11 candidates for president, 9 candidates for vice-president, and 40
candidates for senator. It is difficult to see how the number of candidates can be adequately
accommodated by "COMELEC Space" and "COMELEC Time." Resolution No. 2983 of the
COMELEC, issued in compliance with Section 92 of B.P. 881, mandates that at least thirty minutes
or prime time be granted to the Commission, free of charge, from February 10, 1998 until May 9,
1998. 23 Thirty minutes of prime-time for eighty-nine days (89) is scarcely enough time to introduce
candidates to the voters, much less to properly inform the electorate of the credentials and
platforms of all candidates running for national office. Let us be reminded that those running for
local elective positions will also need to use the same space and time from March 27 to May 9,
1998, and that the COMELEC itself is authorized to use the space and time to disseminate vital
election information. 24 Clearly, "COMELEC Space" and "COMELEC Time" sacrifices the right of
the citizenry to be sufficiently informed regarding the qualifications and programs of the
candidates. The net effect of Section 11(b) is, thus, a violation of the people's right to be informed
on matters of public concern and makes it a palpably unreasonable restriction on the people's
right to freedom of expression. Not only this, the failure of "Comelec Space" and "Comelec Time"
to adequately inform the electorate, only highlights the unreasonableness of the means employed
to achieve the objective of equalizing opportunities for public service between rich and poor
candidates.

Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisements are
allowed in fora other than modern mass media, thus: "aside from Section 11(b) of R.A. 6646
providing for 'COMELEC Space' and 'COMELEC Time,' Sections 9 and 10 of the same law
afford a candidate several venues by which he can fully exercise his freedom of expression,
including freedom of assembly." A concurring opinion points to the mandate of COMELEC to
encourage non-political, non-partisan private or civic organizations to initiate and hold in
every city and municipality, public fora at which all registered candidates for the same office
may participate in, the designation of common poster areas, the right to hold political
caucuses, conferences, meetings, rallies, parades, and other assemblies, as well as the
publication and distribution of campaign literature. All these devices conveniently gloss over
the fact that for the electorate, as shown in surveys by the Ateneo de Manila University's
Center for Social Policy and Public Affairs, mass media remains to be the most important and
accessible source of information about candidates for public office.

It must be borne in mind that the novel party-list system will be implemented in the
impending elections. The party-list system, an innovation introduced by the 1987
Constitution in order to encourage the growth of a multi-party system is designed to give a
chance to marginalized sectors of society to elect their representatives to the Congress. A
scheme aimed at giving meaningful representation to the interests of sectors which are not
adequately attended to in normal legislative deliberations, it is envisioned that system will
encourage interest in political affairs on the part of a large number of citizens who feel that
they are deprived of the opportunity to elect spokesmen of their own choosing under the
present system. It is expected to forestall resort to extra-parliamentary means by minority
groups which would wish to express their interests and influence governmental policies,
since every citizen is given a substantial representation. 25

Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas worker and professional sectors 26 will have the opportunity to elect representatives to
Congress. With the prohibition on political advertisements, however, those parties who wish to
have their candidates elected as sectoral representatives, are prevented from directly
disseminating their platforms of government through the mass media. The ban on political
advertisements thus serves as a deterrent to the development of self-reliance, self-development,
logistical and organizational capability on the part of sectoral parties/organizations, even as it
inhibits them from reaching their target audiences. What more effective way of depriving them of
the chance of consolidating a mass base sorely needed for a fair chance of success in a highly
competitive political exercise. Likewise, with the inability of the candidates to reach the sectors
they seek to represent, the right of the people belonging to these sectors to be informed on
matters of concern to them is likewise violated. 27

Finally, NPC v. COMELEC invokes the specter of the "captive audience" to justify its stand
against political advertisements. Describing political advertisements as "appealing to the
non-intellective faculties of the captive and passive audience," it says that anyhow, the only
limitation imposed by Section 11(b) upon the free speech of candidates is on their right to
bombard the helpless electorate with paid advertisements commonly repeated in the mass
media ad nauseam.

Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the like, it is
not for this Court to determine what the people may or may not watch or read. Even "mind-
numbing" political advertisements are subject to the constitutional safeguard of due process.

Freedom Of Speech Expression Remains A Fresh


and Vital Verity

The guarantee of the freedom of speech which has been defined by Wendell Phillips as "the
instrument and guarantee and the bright and consummate flower of all liberty," has always
been granted a predominant status in the hierarchy of individual rights. 28 It is founded on the
belief that the final end of the state was to make men free to develop their faculties and that
freedom to think as you will and to speak as you think are means indispensable to the discovery
and spread of political truth. 29 Its purpose is to preserve an uninhibited marketplace of ideas
where truth will ultimately prevail. 30 "An individual who seeks knowledge and truth must hear all
sides of the question, consider all alternatives, test his judgment by exposing it to opposition and
make full use of different minds. Discussion must be kept open no matter how certainly true an
accepted opinion may be; many of the most widely accepted opinions have turned out to be
erroneous. Conversely, the same principles apply no matter how false or pernicious the new
opinion may be; for the unaccepted opinion may be true and partially true; and even if false, its
presentation and open discussion compel a rethinking and retesting of the accepted opinion. 31 As
applied to instant case, this Court cannot dictate what the citizen may watch on the ground that
the same appeals only to his non-intellective faculties or is mind-deadening and repetitive. A
veritable "Big Brother" looking over the shoulder of the people declaring: "We know better what is
good for you," is passé.

As to the puerile allegation that the same constitutes invasion of privacy, making the Filipino
audience a "captive audience," the explosive growth of cable television and AM/FM radio will
belie this assertion. Today, the viewing population has access to 12 local TV channels, 32 as
well as cable television offering up to 50 additional channels. To maintain that political
advertisements constitute invasion of privacy overlooks the fact that viewers, with the surfeit of
channels, can easily skip to other TV channels during commercial breaks — a fact which, coupled
with the now ubiquitous remote control device, has become the bane of advertisers everywhere.

The line between gaining access to an audience and forcing the audience to hear is
sometimes difficult to draw, leaving the courts with no clearcut doctrine on issues arising
from this kind of intrusion. This is specially true in cases involving broadcast and electronic
media. The US cases cited as authorities on the captive audience phenomenon, which,
incidentally, did not involve the issue of election campaigns, 33 provide little guidance as to
whether freedom of speech may be infringed during the campaign period for national elections on
account of the individual's right to privacy. 34 Prudence would dictate against an infringement of
the freedom of speech if we are to take into consideration that an election campaigns is as much a
means of disseminating ideas as attaining political office 35 and freedom of speech has its fullest
and most urgent application to speech uttered during election campaigns. 36 In Buckley v. Valeo, a
case involving the constitutionality of certain provisions of the Federal Election Campaign Act,
the United States Supreme Court per curiam held that:

the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the
First Amendment which was designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people. (emphasis supplied) 37

The fear that the candidates will bombard the helpless electorate with paid advertisements,
while not entirely unfounded, is only to be expected considering the nature of political
campaigns. The supposition however that "the political advertisements which will be
"introjected into the electronic media and repeated with mind deadening frequency" are
commonly crafted not so much to inform and educate as to condition and manipulate, not so
much to provoke rational and objective appraisal of candidates' qualifications or programs as
to appeal to the intellective faculties of the captive and passive audience" is not a valid
justification for the infringement of so paramount a right granted by the Constitution
inasmuch as it is the privilege of the electorate in a democratic society to make up their own
minds as to the merit of the advertisements presented. The government derives its power
from the people as the sovereign and it may not impose its standards of what is true and
what is false, what is informative and what is not for the individual who, as a "particle" of the
sovereignty is the only one entitled to exercise this privilege.
Government may regulate constitutionally protected speech in order to promote a compelling
interest if it chooses the least restrictive means to further the said interest without
unnecessarily interfering with the guarantee of freedom of expression. Mere legislative
preference for one rather than another means for combating substantive evils may well be an
inadequate foundation on which to rest regulations which are aimed at or in their operation
diminish the effective exercise of rights so necessary to maintenance of democratic
institutions. 38

It should be noted that legislature has already seen fit to impose a ceiling on the candidates'
total campaign expenditures 39 and has limited the political campaign period to 90 days for
candidates winning for national office and 60 days for congressmen and other local officials. With
these restrictions, it cannot be gainsaid that the constitutional provision on social justice has
been sufficiently complied with. We see no reason why another restriction, must be imposed
which only burdens the candidate and voters alike. To make matters worse, we are not even
certain as to the efficacy of the "ad ban" in curtailing the feared consequences of the object of its
restriction. Of course, this is not to say that the law is being struck down as unconstitutional
mainly because it is efficacious or inefficacious. If this is the only issue which confronts us, there
would have been no need to give due course to the petition inasmuch as we would be inquiring as
to the wisdom of the law and treading into an area which rightfully belongs to the legislature.
Verily, courts cannot run a race of opinions upon points of right, reason and expediency with the
law-making power. 40

Freedom of Expression Incompatible With Social Justice?

The constitutional question at hand is not just a simple matter of deciding whether the "ad
ban" is effective or ineffective in bridging the financial disparity between the rich and poor
candidates. Sec 11(b) of RA No. 6646 strikes at the very core of freedom of expression. It is
unconstitutional not because we are uncertain as to whether it actually levels the playing
field for the candidates but because the means used to regulate freedom of expression is on
all points constitutionally impermissible. It tells the candidates when, where and how to
disseminate their ideas under pain of punishment should they refuse to comply. The
implications of the ban are indeed more complex and far reaching than approximating
equality among the rich and poor candidates.

The primacy accorded the freedom of expression is a fundamental postulate of our


constitutional system. The trend as reflected in Philippine and American decisions is to
recognize the broadest scope and assure the widest latitude to this guaranty. It represents a
profound commitment to the principle that debate of public issue should be uninhibited,
robust and wide open and may best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are or even stirs people to anger. 41

The repression of expression in an attempt to level the playing field between the rich and the
poor candidates is not only unrealistic but goes beyond the permissible limits of freedom of
expression as enshrined in the constitution. Social justice is a laudable objective but it
should not be used as a means to justify infringement of the freedom of expression if it can
be achieved by means that do not unnecessarily trench on the individual's fundamental right.
The case of Guido v. Rural Progress Administration, 42 is particularly enlightening. In said case,
we had occasion to state that:

Hand in hand with the announced principle, herein invoked, that "the promotion of
social justice to insure the well being and economic security of all people should be
the concern of the state", is a declaration with which the former should be reconciled,
that "the Philippines is a Republican state" created to secure to the Filipino people
"the blessings in independence under a regime of justice, liberty and democracy."
Democracy as a way of life enshrined in the Constitution, embraces as its necessary
components freedom of conscience, freedom of expression, and freedom in pursuit of
happiness. . . . Social justice does not champion division of property or equality of
economic status; what it and the Constitution do guarantee are equality of economic
opportunity, equality of political rights, equality before the law, equality between
values given and received . . .

While we concede the possibility that the rich candidates may dominate the airwaves to the
detriment of the poor candidates, the latter should not be prevented from replying. While they
may be restricted on account of their financial resources, they are not denied access to the
media altogether. This is what is meant by the phrase "equal time, space, equal opportunity
and the right of reply" under Article IX (C)(4) of the 1987 Constitution which was inserted by
the framers of the Constitution as a reaction to a 1981 ruling of the Supreme Court that when
the president speaks over radio or television, he speaks not as representative of his party but
of the people and therefore opposition parties have no right to demand equal time. 43

It is ironic that the guarantee of freedom of expression should be pitted against the
constitutional provision on social justice because the freedom of speech is the most potent
instrument of public opinion, not to speak of its being the most effective weapon for effecting
political and social reforms. Certainly, an infringement of the freedom of speech in a less
than heroic attempt at attaining social justice cannot be countenanced, for in the ultimate
analysis social justice cannot flourish if the people's right to speak, to hear, to know and ask
for redress of grievances is watered down.

A word on the intervenors' argument that Resolution No. 2983, Section 2, insofar as it directs
every radio broadcasting and television station to provide COMELEC with air time free of
charge constitutes taking of private property for public use without just compensation. The
COMELEC, anticipating its vulnerability to said challenge passed Resolution 2983-A on
March 3, 1998 requiring that it pay just compensation for its COMELEC time.

Buckley vs. Valeo and Existing US Jurisprudence

The novelist George Orwell once said, "In a society in which there is no law, and in theory no
compulsion, the only arbiter of behavior is public opinion. But public opinion, because of the
tremendous urge to conformity in gregarious animals, is less tolerant than any other system
of law." For want of legislature to equalize the playing field between the rich and the poor
candidates, it has, by imposing a complete prohibition on paid political advertisements,
burned down a house to roast a pig. For fear of accusations that it might be treading into an
area which rightfully belongs to the legislature, the Court today, by sanctioning an
unnecessary infringement on the freedom of speech, has unwittingly allowed the camel's
nose into the tent.

My colleague, Justice Reynato Puno, in his separate opinion, apparently overlooked the
thrust of our dissenting opinion when we quoted the case of Buckley v. Valeo. 44 Lest we be
misunderstood, we have in no way relied on the Buckley v. Valeo case for the grant of the instant
petition inasmuch as it has never escaped our notice that legislature has already seen fit to
impose a ceiling on the candidates' total campaign expenditures 45 Precisely, we have repeatedly
emphasized in the dissenting opinion that we see no reason why another restriction must be
imposed on the constitutional guarantee of freedom of speech which only burdens the candidates
and electorates alike when legislature has already taken steps to comply with the constitutional
provision on social justice by imposing a ceiling on the candidates' total campaign expenditures
and limiting the campaign period to 90 days for candidates running for national office and 60 days
for congressmen and other local officials. We have mentioned Buckley if only to underscore the
fact that due to the primacy accorded to freedom of speech, courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political content. To preserve the
sanctity of the status accorded to the said freedom, the US Supreme Court has, in fact, gone as
far as invalidating a federal law limiting individual expenditures of candidates running for political
office.

In any case, to address some misconceptions about existing jurisprudence on the matter, we
now present a brief discussion on Buckley and the preceding US cases. In the case
of Buckley v. Valeo, a divided US Supreme Court, per curiam held that a federal law limiting
individual contributions to candidates for office served the state's compelling interest in
limiting the actuality and appearance of corruption. However a law limiting expenditures by
candidates, individuals and groups was held unconstitutional. The rationale for the
dichotomy between campaign expenditures and contributions has been explained in this
wise — campaign contributions are marginal because they convey only an undifferentiated
expression of support rather than the specific values which motivate the support.
Expenditures, on the other hand, as directly related to the expression of political views, are
on a higher plane of constitutional values. The Court, in noting that a more stringent
justification is necessary for legislative intrusion into protected speech said, "A restriction on
the amount of money a person or a group can spend on political communication necessarily
reduces the quantity of expression by restricting the number of issues discussed, the depth
of their exploration, and the size of the audience reached. This is because virtually every
means of communicating in today's mass society requires the expenditure of money." 46

A more discerning scrutiny of the US cases following Buckley, would show that
while Buckley has been widely criticized, it has, to date, never been modified, much less
discredited. In California Medical Association vs. FEC, 47 a law limiting the amount an
incorporated association can contribute to a multi-candidate political committee was upheld. The
spending was viewed not as independent political speech but rather as "speech by proxy," hence,
the spending was deemed analogous to group contributions which can be regulated.

In FEC vs. National Conservative Political Action Comm. 48 the US Supreme Court invalidated a
section of the Presidential Election Campaign Fund Act which makes it a criminal offense for
an independent political committee to spend more than $1,000 to further the election of
a presidential candidate who elects public funding. National Conservative Political Action
Committee (NCPAC) and the Fund for a Conservative Majority (FCM), two political action
committees or PAC's, solicited funds in support of President Reagan's 1980 presidential
campaign. The PAC's spent these funds on radio and television advertising in support of Reagan.
The Court, relying onBuckley v. Valeo and the distinction it drew between expenditures and
contributions, held that the independent expenditures of the political committees were
constitutionally protected for they "produce speech at the core of the First Amendment"
necessitating a "rigorous standard of review." Justice Rehnquist, for the court, likened the
restriction to allowing a speaker in a public hall to express his views while denying him use of the
amplifier. As in Buckley, independent expenditures, not coordinated with candidates' political
campaign, were seen as presenting a lesser danger of political quid pro quos. The Court then
proceeded to reject efforts to support the statutory limitation on expenditures on the basis of
special treatment historically accorded to corporations inasmuch as the terms of the Campaign
Fund Act "apply equally to an informal neighborhood group that solicits contributions and spends
money on a presidential election campaign as to the wealthy and professionally managed PAC's."

In the case of FEC v. Massachussets Citizens for Life (MCFL), 49 a provision of the Federal
Election Campaign Act prohibiting direct expenditure of corporate funds to a non-profit, voluntary
political association concerned with elections to public office was struck down as
unconstitutional. No compelling government interest was found to justify infringement of
protected political speech in this case where a small voluntary political association, which had no
shareholders and was not engaged in business, refused to accept contributions from either
business corporations or labor unions.

In Austin v. Michigan Chamber of Commerce, 50 the case cited by Justice Puno, a Michigan
statute prohibiting corporations from making campaign contributions from their general treasury
funds to political candidates was held not to violate the first amendment even though the statute
burdened expressive activity mainly because the statute was sufficiently narrowed to support its
goal in preventing political corruption or the appearance of undue influence — it did not prohibit
all corporate spending and corporations were permitted to make independent expenditures for
political purposes from segregated funds but not from their treasuries. Notably, the non profit
corporation involved in this case, the Michigan Chamber of Commerce (hereinafter referred to as
the Chamber of Commerce), lacked three of the distinctive features of MCFL, the organization
involved in the FEC vs. National Conservative Political Action Comm 51 case, namely: (1) The
Chamber of Commerce, unlike MCFL, was not formed just for the purpose of political expression
(2) The members of the Chamber of commerce had an economic reason for remaining with it even
though they might disagree with its politics and (3) The Chamber of Commerce, unlike MCFL, was
subject to influence from business corporations which might use it as a conduit for direct
spending which would pose a threat to the political marketplace.

From the foregoing, it should be obvious that Austin in fact supports the holding in Buckley
v. Valeoand "refines" it insofar as as it allows the regulation of corporate spending in the
political process if the regulation is drawn with sufficient specificity to serve the compelling
state interest in reducing the threat that "huge corporate treasuries" will distort the political
process and influence unfairly the outcome of elections.

The ad ban, undoubtedly, could hardly be considered as a regulation drawn with sufficient
specificity to serve compelling governmental interest inasmuch as it imposes a complete
prohibition on the use of paid political advertisements except through Comelec time and
space despite the fact that Congress has already seen fit to impose a ceiling on the
candidates' total campaign expenditures. While it seems a rather fair proposition that
Congress may regulate the misuse of money by limiting the candidates' total campaign
expenditures, it seems a rather curious supposition that Congress through the ad ban can
regulate the misuse of money by telling the candidates how, when and where to use their
financial resources for political campaigns. Obviously, it is one thing to limit the total
campaign expenditures of the candidates and another to dictate to them as to how they
should spend it.

Freedom of expression occupies a preferred position in the hierarchy of human values. The
priority gives the liberty a sanctity and a sanction not permitting dubious intrusions and it is
the character of the right, not the limitation which determines what standard governs the
choice. 52 Consequently, when the government defends a regulation on speech as a means to
redress past harm or prevent anticipated harm, it must do more than simply "posit the existence
of the disease sought to be cured. 53 It must demonstrate that the recited harms are real, not
merely conjectural and that the regulation will alleviate these harms in a material way. 54

As earlier pointed out, legislature has already seen fit to impose a ceiling on the total
campaign expenditures of the candidates and has limited the campaign period for 90/60 days.
We see no reason why another restriction must be imposed which only burdens the
candidates and voters alike. The fact alone that so much time has been devoted to the
discussion as to whether the ad ban does in fact level the playing field among the rich and
poor candidates should be a strong indication in itself that it is a dubious intrusion on the
freedom of expression which should not be countenanced.
Illegitimate and unconstitutional practices make their initial foothold by furtive approaches
and minimal deviations from legal modes of procedure. Hence, courts must be extremely
vigilant in safeguarding the fundamental rights granted by the Constitution to the individual.
Since freedom of expression occupies a dominant position in the hierarchy of rights under
the Constitution, it deserves no less than an exacting standard of limitation. Limitations on
the guarantee must be clearcut, precise and, if needed readily controllable, otherwise the
forces that press towards curtailment will eventually break through the crevices and freedom
of expression will become the exception and suppression the rule. 55 Sadly, the much vaunted
ad ban failed to live up to such standard and roseate expectations.

Freedom of Expression In Historical Context

At this juncture, as we celebrate the Centennial of our Philippine Independence, it is timely to


call to mind that wars and revolutions have been fought, not only in our shores and in our
time, but in centuries past, halfway around the globe to keep these subject rights inviolate.
To stretch our memories, Spain's adamant denial of basic freedoms to our hapless
forefathers, among others, sparked the Philippine revolution. Jose Rizal, in "Filipinas
Despues de Cien Años" 56 described the reform a sine quibus non, saying, "The minister, . . . who
wants his reforms to be reforms, must begin by declaring the press in the Philippines free." The
Filipino propagandists who sought refuge in the freer intellectual climate of Spain invariably
demanded "liberty of the press, of cults, and of associations 57 through the columns of "La
Solidaridad."

One of the more lofty minds unleashed his fierce nationalistic aspirations though the novels
Noli Me Tangere and El Filibusterismo, necessarily banned from the author's native land.
Eventually, the seeds of these monumental works ignited the flame of revolution, devouring
in the process its foremost exponent, albeit producing a national hero, Jose Rizal. The mighty
pen emerged victorious over the colonizers' sword.

The Malolos Constitution, approved before the turn of century on January 20, 1899, enshrined
freedom of expression in Article 20 of its Bill of Rights, thus:

Article 20 Neither shall any Filipino be deprived:

1. Of the right to freely express his ideas or opinions, orally or in writing, through the
use of the press or other similar means. 58

This right, held sacrosanct by the Filipino people and won at the cost of their lives found its
way ultimately in the Constitutions of a later day, reenforced as they were, by the profound
thoughts transplanted on fertile soil by libertarian ideologies. Why emasculate the freedom of
expression now to accord a governmental agency a power exercisable for a limited period of
time for the dubious purpose of "equalizing" the chances of wealthy and less affluent
candidates?

In summary, I hold that Section 11(b) of R.A. 6646, in the six years that have elapsed since it
was upheld as being in consonance with the fundamental law, has now become out of sync
with the times and, therefore, unreasonable and arbitrary, as it not only unduly restrains the
freedom of expression of candidates but corollarily denies the electorate its fullest right to
freedom of information at a time when it should flourish most.

For the reasons stated above, I VOTE to declare Section 11(b) of R.A. 6646
UNCONSTITUTIONAL.
Quisumbing and Purisima, JJ., dissent.

PANGANIBAN, J., dissenting;

The Court, by a majority vote, decided to uphold the ban on political advertising, as provided,
under Section 11(b) 1 of RA 6646, and to reiterate the 1992 ruling in National Press Club
vs. Comelec 2 for two main reasons:

1. To equalize "as far as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered by huge campaign
'war chests.'" In other words, the intention of the prohibition is to equalize the
"political playing field" for rich and poor candidates.

2. While conceding that Section 11(b) of RA 6646 "limit[s] the right of free speech and
of access to mass media of the candidates themselves," the Court justifies the ad ban
by alleging that: (a)it is limited, first, in its "duration," (i.e. the ban applies only during
the "election period") and, second, in its "scope" (i.e. the prohibition on the sale and
the donation of print space and air time covers only those for "campaign and other
political purposes", time does not restrict the legitimate reporting of news and
opinions by media practitioners who are not candidates); and (b) the Comelec is
authorized to procure, by purchase or donation, media time and space which are to be
fairly, freely and equally distributed among the candidates. Otherwise stated, the grant
of Comelec time and space, free of charge, to said candidates makes up for the
admitted infringement of the constitutional right to free speech and access to mass
media during the campaign period.

With all due respect, I disagree with the majority's view and join the stirring Dissenting
Opinions of Justices Hugo E. Gutierrez, Jr., 3 Isagani A.
Cruz 4 and Edgardo L. Paras 5 in NPC vs. Comelec, and of Justice Flerida Ruth P. Romero in the
present case. I will no longer repeat their cogent legal arguments. Let me just add my own.

1. Ad Ban Not Pro-Poor


but Anti-Poor

The majority argues that the ad ban is pro-poor, because it prevents the rich from buying
media time and space which the poor cannot afford or match. This argument assumes that
media advertising is expensive and, thus, beyond the reach of the poor.

I respectfully submit that such argument is bereft of factual basis. True, a full-page ad in a
major broadsheet 6 may be priced at about P100,000; a 30-second commercial in a major
television channel, 7anywhere from P15,000 to P90,000 depending on the time and the program;
while air time of an equal duration in a leading radio station, anywhere from P300 to P4,500. 8 But
even with such price tags, media ads are not necessarily expensive, considering their nationwide
reach, audience penetration, effectiveness and persuasive value.

Realistically, expenses are involved in a candidacy for a national office like the presidency,
the vice presidency, and the senate. In recognition of this, the law has limited campaign
expenditures to ten pesos (P10) for every voter in the case of candidates for president and
vice president, and three pesos (P3) per voter in their constituencies, for other
candidates. 9 Anyone — whether rich or poor — who aspires for such national elective office must
expect to spend a considerable sum, whether of his own or from allowable donations, to make
himself and his platform or program of government known to the voting public.
Media Ads

Comparatively Cheaper

While a one-page black-and-white ad in a major daily costs about P100,000, it is replicated,


however, in about 250,000 copies 10 circulated to an equal number of offices and
households nationwide on the very same day of its publication. Each newspaper copy has an
average readership of six. Hence, the ad is exposed to about 1.5 million (250,000 x 6) people all
over the country. Consider, too, that people discuss what they read while they congregate in
barber shops, corner stores, and other places where people gather. Sometimes, radio and TV
broadcasters pick up and comment on what they read in newspapers. So, the reach, pass-on
readership, multiplier effect and effectivity of a broadsheet ad are practically immeasurable.

On the other hand, let us consider the alternative of printing and distributing a poster or
handbill of similar size. The actual printing cost of such handbill on newsprint is twenty
centavos (P.20) per copy.11 The cost of P250,000 copies (the circulation of a major daily) would
thus be P50,000 (250,000 x P.20). But that is only the printing cost. To disseminate these handbills
nationwide on the same day of printing without the distribution network of a major newspaper is
almost impossible. Besides, the cost would be horrendous. To approximate the circulation of a
major newspaper, the most practical substitute would be the mails. Ordinary mail is now P4.00 per
posting. Hence, the distribution cost through the mails would be P1 million (250,000 copies x
P4.00). And this does not include the manual work and cost of sorting, folding and individually
addressing these 250,000 pieces of mail matter. (This alternative assumes the availability of a
mailing list equivalent to the reach of a newspaper.) Even if third-class mail is used, the
distribution cost alone will still be P3.00 per individual mailing, or P750,000 for all 250,000
copies. 12

This alternative is not only much more expensive but much less effective as well, because it
has no guarantee of same-day delivery, has a diminished readership multiplier effect and is
tremendously cumbersome in terms of sorting and distribution.

Furthermore, a candidate need not buy one-page ads. He can use quarter-page ads at one
fourth the cost or about P25,000 only per issue. To be effective in his ad campaign, he may
need to come out once every three days (to be spread out among the different dailies) or 30
times during the 90-day campaign period 13 for national candidates. Hence, he will spend, for the
entire duration of the campaign, about P750,000 (P25,000 x 30). I repeat, to advertise a one-fourth
page ad at least 30 times in various major dailies, a candidate needs to spend only P750,000 — an
amount less than the alternative of printing and distributing nationwide ONLY ONCE a less timely
and less effective equivalent leaflet or poster.

A similar detailed comparison of cost-benefit could be written for radio and television. While,
at initial glance, the rates for these electronic media may appear high, still they could be
proven more beneficial and cheaper in the long term because of their "value-for-money"
appeal. 14

Candidates Should Not Be Denied


Option to Use Media Ads

From the foregoing, it is clear that mass media truly offers an economical, practical, and
effective meansby which a relatively unknown but well-qualified political candidate who has
limited resources, particularly one running for a national office, may make known to the
general public during the shortcampaign period 15 his qualifications, platform of government,
stand on vital issues, as well as his responses to questions or doubts about his capabilities, his
character or any other matter raised against him. Deprived of media ads, the rich candidate, unlike
his poor opponent, resorts to expensive propaganda — the holding of public meetings and rallies
before large but oftentimes "paid" crowds, helicopter stops and motorcades spanning several
towns and cities, the production of ingenious materials, giveaways and other products, and the
incessant printing and distribution of various campaign paraphernalia. These forms of electoral
promotion ineluctably require a large political machinery and gargantuan funds (organization +
people/supporters + communication gadgets + vehicles + logistics). To combat this formidable
and expensive election behemoth, the poor candidate's most viable alternative may be media
advertising.

In NPC vs. Comelec, it was feared that the "unlimited purchase of print space and radio and
television time . . . by the financially affluent [was] likely to make a crucial difference." But I
say such fear is unfounded. First, because campaign expenses are limited by law. Second,
the possibility of the abuse and misuse of media ads by the "financially affluent" is not an
argument in favor of their total withdrawal, for — to use the very words of the majority in NPC
— "there is no power or authority in human society that is not susceptible of being
abused." 16 Third, the absence of access to media advertising totally deprives the poor candidate
of his most formidable weapon in combating the "huge campaign war chests" of rich contenders.

THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING SHOULD BE BANNED
BECAUSE ONLY THE RICH CAN AFFORD IT OR, FOR THAT MATTER, THEY MAY ABUSE OR
MISUSE IT. Quite the contrary, in terms of reach, pass-on readership, multiplier effect and
cost-benefit advantage, media advertising may be the cheapest and most effective campaign
mechanism available. I am not suggesting that every candidate should use media ads. In the
final analysis, it is really up to the candidates and their campaign handlers to adopt such
mode and means of campaigning as their budgets and political strategies may
require. 16a What I am stressing is that candidates, whether rich or poor, should be given the
option of campaigning through media, instead of being forced to use other forms of propaganda
that could turn out to be less effective and more expensive.

2. Ad Ban Not Limited;


Comelec Time and Space Inutile

I now come to the second major point. The majority rationalizes the ad ban by saying that it
has a very limited duration and scope and that, in any event, the Comelec's grant of free
media time and space to candidates more than makes up for the violation of their
constitutional right. I disagree.

Ad Ban Not
Limited in Duration

The ad ban is constitutional because, according to the majority, it is limited in duration for
the reason that it is enforced only during the election period. In my humble view and with all
due respect, this is both erroneous and illogical. A political advertisement is relevant only
during the campaign period — not before and not after. As petitioners put it, a ban on
mountain-skiing during the winter season cannot be said to be limited in duration, just
because it is enforced during winter. After all, skiing is indulged in only when the mountains
slopes are covered with snow. To add a further parallel, a ban against the planting of rice
during the rainy season is not limited simply because it covers only that season. After all,
nobody plants rice during summer when the soil is parched. In the same manner, campaign
ads are not resorted to except during the campaign period. And their prohibition does not
become any less odious and less comprehensive just because the proscription applies only
during the election season. Obviously, candidates need to advertise their qualifications and
platforms only during such period. Properly understood, therefore, the prohibition is not
limited in duration but is in fact and in truth total, complete and exhaustive.

Ad Ban Neither
Limited in Scope

The majority also claims that the prohibition is reasonable because it is limited in scope; that
is, it refers only to the purchase, sale or donation of print space and air time for "campaign or
other political purposes," and does not restrict news reporting or commentaries by editors,
columnists, reporters, and broadcasters. But the issue here is not the freedom of media
professionals. 17 The issue is the freedom of expression of candidates. That the freedom of the
press is respected by the law and by the Comelec is not a reason to trample upon the candidates'
constitutional right to free speech and the people's right to information. In this light, the majority's
contention is a clear case of non sequitur. Media ads do not partake of the "real substantive evil"
that the state has a right to prevent 18 and that justifies the curtailment of the people's cardinal
right to choose their means of expression and of access to information.

Besides, what constitutes "campaign or other political purposes"? Neither RA 6646 nor the
majority provides an explanation. If candidates buy 30 column-inches of newspaper space or
one hour of prime radio/TV, time everyday, and if they retrain professional journalists to use
such space/time to defend them from attacks and to promote their platforms of government,
should such purchase be covered by the ad ban, or should it be allowed as an exercise of the
freedom of journalists to express their views? Even more insidiously, should regular
columnists' daily defense of their chosen candidates and daily promotion of their platforms
of government constitute donated space for "campaign and other political purposes"? 19

Ad Ban Not Compensated for or


Justified by Free "Comelec Time"

Finally, the majority opines that the grant of free Comelec media time and space to
candidates more than makes up for the abridgment of the latter's right to buy political
ads. 20 With due respect, I believe this is hollow and shallow.

In its Compliance dated March 13, 1998, Comelec tell us that under its Resolution No. 3015, it
gave due course to eleven candidates for president, 21 nine for vice president, 22 and forty for
senator. 23 It is claimed however that, all in all, there are really about 100,000 candidates running
for about 17,000 national and local positions in the coming elections, from whom a voter is
expected to choose at least 30 24 to vote for. With so many candidates, how can the ordinary,
sometimes nonchalant, voter ever get to know each of the political hopefuls from whom he will
make an intelligent selection? In the crucial choice for president alone, how can ordinary citizens
intelligently and sufficiently assess each of the 11 candidates in order to make a sensible choice
for a leader upon whom to entrust the momentous responsibility of carving the country's path in
the next millennium?

The Comelec answers these questions with Resolution No. 2983-A, promulgated on March 3,
1998, in which it asks "every radio broadcasting and television station operating under
franchise [to] grant the Commission, upon payment of just compensation, at least thirty (30)
minutes of prime time daily, to be known as 'Comelec time' effective February 10, 1998 for
candidates for President, Vice President and Senators, and effective March 27, 1998 for
candidates for local elective offices, until May 9, 1998," to be allocated "by lottery" among
candidates requesting its use. But Comelec, in the same Compliance, informed the Court that
"it is not procuring 'Comelec space' (in any newspaper) by virtue of the effects of the
decision of this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec,
244 SCRA 272." 25

In sum, the Comelec intends to secure 30 minutes of "Comelec time" from every radio and
broadcasting station to be allocated equally to all candidates. The Comelec does not state
exactly how it intends to allocate — except "by lottery" — these 30 minutes per station to the
17,000 candidates, considering that these stations do not have the same reach, audience and
penetration. The poll body does not say exactly how many stations are involved, what budget
allocation, if any, it has for the purpose, 26 when each candidate will be allowed to speak and for
how long, how the Comelec intends to cover the 77 provinces, 68 cities and 42,000 barangays
nationwide, and many other details. Moreover, while the Comelec smugly speaks of free Comelec
time being effective on "February 10, 1998" for national candidates, Resolution 2983-A itself was
promulgated only on March 3, 1998.

Up to this writing, I have yet to hear of any major candidate using this so-called free Comelec
broadcast time. In fact, during the oral argument of this case on March 5, 1998, Comelec
Chairman Bernardo P. Pardo frankly admitted that no candidate had applied for an allocation
of Comelec time. Not even petitioners. This is the best testament to the utter inutility and
ineffectivity of Comelec time. Indeed, it cannot be a substitute, much less a viable alternative,
to freely chosen but paid for media ads. It cannot compensate for the violation of the
candidates' right to free speech and media access, or for the electorate's right to information.

If the real objective is to level the playing field for rich and poor candidates, there must be, as
there already are, a cap on election expenses and a shortening of the campaign period. The
incapability of the Comelec to effectively monitor and strictly implement such expense and
time limitations should not take its toll upon constitutionally enshrined liberties of the people,
including the candidates. To prohibit access to mass media, except only through Comelec
time — which has been indubitably shorn to be sorely insubstantial, insignificant and inutile
— is not, and is far from being, a solution to the problems faced by poor candidates. The
simple remedy is to lift the media ban.

Epilogue

The ad ban is a blatant violation of the candidates' constitutional right to free speech 27 and
the people's right to information. 28 Being the last refuge of the people and the guardian of the
Constitution, this Court should then, with alacrity, view the ban with suspicion, if not with outright
rejection. 29 To repeat, the alleged limitations are in reality nonexistent; and the "pro-poor"
justification, without logic.

To say that the prohibition levels the playing field for the rich and the poor is to indulge in a
theoretical assumption totally devoid of factual basis. On the contrary, media advertising may
be — depending on a contender's propaganda strategy — the cheapest, most practical and
most effective campaign medium, especially for national candidates. By completely denying
this medium to both the rich and the poor, this Court has not leveled the playing field. It has
effectively abolished it! Far from equalizing campaign opportunities, the ban on media
advertising actually favors the rich (and the popular) who can afford the more expensive and
burdensome forms of propaganda, against the poor (and the unknown) who cannot.

The allegation that the prohibition is reasonable because it is limited in duration and scope is
itself most unreasonable, bereft as it is of logic and basis. Even more shallow is the argument
that the Comelec-given media time and space compensate for such abridgment. In fact, the
Comelec is not even procuring any newspaper space. In any event, the fact that not even the
poorest candidates have applied for available opportunities is the best testament to its
dubiousness. That petitioners who are seasoned political leaders prefer to pay for their own
media ads rather than to avail themselves of the Comelec freebies refutes the majority's
thesis of compensation. Indeed, the free things in life are not always the best. 30 They mat just
be a bureaucratic waste of resources.

Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad
ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges
reverence for the stability of judicial doctrines. I submit, however, that more important than
consistency and stability are the verity, integrity and correctness of jurisprudence. As Dean
Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct
itself and move in cadence with the march of the electronic age. Error and illogic should not
be perpetuated. After all, the Supreme Court, in many cases, 31 has deviated from stare
decisis and reversed previous doctrines and decisions. It should do no less in the present case.

Elections can he free, honest and credible not only because of the absence of the three
execrable "G's" or "guns, goons and gold." Beyond this, the integrity and effectivity of
electoral democracy depend upon the availability of information and education touching on
three good "P's" — principles, platforms and programs of the candidates. Indeed, an
intelligent vote presupposes a well-informed voter. If elections must be rid of patronage,
personalities and popularity as the main criteria of the people's choice, we must allow
candidates every opportunity to educate the voters. And corollarily, the people must be
accorded every access to such information without much effort and expense on their part.

With all due respect, I submit that the ad ban is regressive, repressive and deceptive. It has
no place in our constitutional democracy.

WHEREFORE, I vote to GRANT the petition and to CONDEMN Section 11(b) of RA 6646 as
UNCONSTITUTIONAL and VOID.

Quisumbing and Purisima, JJ., dissent.

Separate Opinions

PUNO, J., separate concurring;

In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No. 6646 and
Resolution No. 2974 of the COMELEC implementing said law. They contend:

THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA


VIRES ON THE PART OF CONGRESS, AND VIOLATIVE OF THE VERY
CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT TO BE GROUNDED.

II

CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN


IS NOT LIMITED IN TIME AND SCOPE OF APPLICATION.
A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-
ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.

B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR


AS THE CANDIDATE'S FREEDOM TO EXPRESS THROUGH THE MASS MEDIA, IT IS
ABSOLUTE, ALL-EMCOMPASSING, COMPREHENSIVE AND UNLIMITED.

III

THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR
RESTRAINT, AND CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.

IV

THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE


THE DESIRED END.

A. INSTEAD OF "LEVELING THE PLAYING FIELD," INSOFAR AS THE


USE OF MASS MEDIA FOR POLITICAL PURPOSES IS CONCERNED,
THE POLITICAL AD BAN HAS ABOLISHED THE PLAYING FIELD.

B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN,


BECAUSE IT DOES NOT PREVENT THE RICH CANDIDATE FROM
USING HIS SUPERIOR RESOURCES TO THE UNDUE DISADVANTAGE
OF THE POOR CANDIDATE.

C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD


BAN BECAUSE ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN
ORDER TO PREVENT THE RICH CANDIDATE FROM TAKING UNDUE
ADVANTAGE OF HIS SUPERIOR RESOURCES.

THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED


ON MATTERS OF PUBLIC CONCERN.

VI

THERE IS NO NEED FOR "EMPIRICAL DATA" TO DETERMINE WHETHER THE


POLITICAL AD BAN OFFENDS THE CONSTITUTION OR NOT.

The Solicitor General and the petitioners-in-intervention likewise contend that section 11(b)
of R.A. No. 6646 is unconstitutional principally because it impairs freedom of speech and of
the press.

A quick glance at petitioners' arguments against section 11(b) of R.A. No. 6646 will show that
they are mere rehash of arguments in the NPC case. The lack of new arguments is a tribute to
the brilliant majority decision and equally enlightening dissenting opinions in said case
which petitioners now seek to reexamine. A repetition of the NPC rationale is thus
unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero which cites Buckley
v. Valeo, 1 a 1976 case where a divided us Supreme Court ruled that limits on campaign
expenditures violate the guarantee of freedom of speech. The essence of the Buckley ruling is
that "the concept that government may restrict the speech of some elements of society in order to
enhance the relative voice of others is wholly foreign to the First Amendment . . ." 2

A reading of American legal literature, however, will reveal that Buckley has been widely
criticized by libertarians because its pro-business thrust has pernicious effects on efforts to
achieve much needed electoral reforms. 3 Typical of the criticisms is the observation of wright
that the Buckley Court ". . . has given protection to the polluting effect of money in election
campaigns. As a result, our political system may not use some of its most powerful defenses
against electoral inequalities." 4 The barrage of criticisms caused the US Supreme Court to modify
its absolute support for free speech in Buckley. In the 1990 case of Austin v. Michigan State
Chamber of Commerce, 5 it upheld the constitutionality of a Michigan law that prohibited
corporations from using corporate treasury funds to support or oppose any candidate for office.
Retreating from Buckley, the Austin Court recognized the state's compelling interest in regulating
campaign expenditure. Writing for the majority, Mr. Justice Thurgood Marshall, an icon of
libertarians declared: "Michigan identified as a serious danger the significant possibility that
corporate political expenditures will undermine the integrity of the political process, and it has
implemented a narrowly tailored solution to that problem." In his concurring opinion, the last of
the libertarians in the US High Court, Mr. Justice Brennan, held: "In MCFL, we held that a
provision of the Federal Election Campaign Act of 1971 (FECA), . . . similar to the Michigan law at
issue here, could not be applied constitutionally to a small, anti-abortion advocacy group. In
evaluating the First Amendment challenge, however, we acknowledged the legitimacy of
Congress' concern that organizations that amass great wealth in the economic marketplace
should not gain unfair advantage in the political marketplace."

There is less reason to apply the discredited Buckley decision in our setting. Section 11(b) of
R.A. No. 6646 is based on provisions of our Constitution which have no counterparts in the
US Constitution. These provisions are:

Art. II, sec. 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law.

Art. XIII, sec. 1. The Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce social,
economic, andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

Art. IX (c) (4). The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits from the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including reasonable
equal rates therefor for public information campaigns and forms among candidates in
connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.

A member of the Constitutional Commission, now our distinguished colleague, Mr. Justice
Hilario Davide, Jr., well explained these new wrinkles in our Constitution, viz.:
xxx xxx xxx

Aware of the lamentable fact in the Philippines; no gap between these two
unavoidable extremes of society is more pronounced than that in the field of politics,
and ever mindful of the dire consequences thereof, the framers of the present
Constitution saw it fit to diffuse political power in the social justice provisions. Ours
has been a politics of the elite, the rich, the powerful and the pedigreed. The victory of
a poor candidate in an election is almost always an exception. Arrayed against the
vast resources of wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting chance. Of course, there have been isolated
instances — but yet so few and far between — when poor candidates made it. 6

He stressed that this thrust for political equality is an improvement of our past Constitutions
which merely sought to establish equality in the economic and social fields. 7

It is difficult to think why such an egalitarian law like Section 11(b) of R.A. No. 6646 should be
condemned when it equalizes the political opportunities of our people. The gap between the
perfumed few and the perspiring many in our country is galloping at a frightening pace. As
the cost of election spirals at an immoral speed, levers of the political power are wielded
more and more by the wealthy alone. The subject law attempts to break this control by
reducing the purchasing power of the peso of the rich in the political freemarket.

Political equality is a touchstone of democracy. The guaranty of freedom of speech should


not be used to frustrate legislative attempts to level the playing field in politics. R.A. No. 6646
does not curtail speech as it no more than prevents the abusive use of wealth by the rich to
frustrate the poor candidate's access to media. It seems to me self-evident that if Congress
can regulate the abuse of money in the economic market so can it regulate its misuse in the
political freemarket. Money talks in politics but it is not the specie of speech sanctified in our
Constitution. If we allow money to monopolize media, the political freemarket will cease to be
a market of ideas but a market for influence by the rich. I do not read freedom of speech as
meaning more speech for the rich for freedom of speech is not guaranteed only to those who
can afford its exercise. There ought to be no quarrel with the proposition that freedom of
speech will be a chimera if Congress does not open the opportunities for its exercise. When
the opportunities for its exercise are obstructed by the money of the rich, it is the duty of
Congress to regulate the misuse of money — for in the political marketplace of ideas, when
money win, we lose.

Let us not also close our eyes to the reality that in underdeveloped countries where sharp
disparities in wealth exist, the threat to freedom of speech comes not only from the
government but from vested interests that own and control the media. Today, freedom of
speech can be restrained not only by the exercise of public power but also by private power.
Thus, we should be equally vigilant in protecting freedom of speech from public and private
restraints. The observation of a legal scholar is worth meditating, viz.: "With the development
of private restraints on free expression, the idea of a free marketplace where ideas can
compete on their merits has become just as unrealistic in the twentieth century as the
economic theory of perfect competition. The world in which an essentially rationalist
philosophy of the first amendment was born has vanished and what was rationalism is now
romance." 8

I vote to dismiss the petitions.

Melo, J., concurs.


VITUG, J., separate opinion;

I share the opinion of those who continue to uphold the decision in the National Press Club
vs.Commission on Elections case that has sustained the validity of Section 11(b) of Republic
Act ("R.A.") No. 6646, otherwise also known as the Electoral Reforms Law of 1987.

Petitioners, in seeking a re-examination of the decision of this Court in the National Press
Club case, no more than invoke anew Section 4, Article III, of the Constitution to the effect
that —

No law shall be passed abridging the freedom of speech, of expression, or of press,


on the right of the people peaceably to assemble and petition the government for
redress of grievances.

It is their submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of Comelec
Resolution No. 2974 should be declared unconstitutional. These contested provisions state:

Sec. 11. Prohibited forms of election propaganda. — In addition to the forms of


election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall
be unlawful;

xxx xxx xxx

b) for any newspapers, radio broadcasting or television station, other mass media, or
any person making use of the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to the Commission as
provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the campaign
period.

Sec. 18. Prohibited forms of election propaganda. — It is unlawful

xxx xxx xxx

e. For any radio broadcasting or television station or any person making use of
broadcast media to sell or give, free of charge, any air time for campaign and other
political purposes, except thru "COMELEC Time," allotted to the Commission
pursuant to Section 92 of the Omnibus Election Code.

I see, however, in the above provisions a faithful compliance and due observance of the
language, intent and spirit of the Constitution itself, Article IX(C)(4) of which reads:

Sec. 4. The Commission [on Elections] may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful,
and credible elections. (Emphasis supplied.)

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of
the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general application, must yield to the
specific demands of the Constitution. The freedom of expression concededly holds, it is true,
a vantage point in the hierarchy of constitutionally-enshrined rights but, like all fundamental
rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful"
and the "weak" in our society but it is to me a genuine attempt on the part of Congress and
the Commission on Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life to the candidates' right of
free expression rather than being viewed as an undue restriction of that freedom. The
wisdom in the enactment of the law, i.e., that which the legislature deems to be the best in
giving life to the Constitutional mandate, is not for the Court to question; it is a matter that
lies beyond the normal prerogatives of the Court to pass upon.

I vote to dismiss the petition.

Melo and Purisima, JJ., concur.

ROMERO, J., dissenting;

A foolish consistency is the hobgoblin of little minds . . . . 1

Not wishing to be held hostage by Emerson's "hobgoblin," I dare to break away from a past
position and encapsulize my ruminations in a dissenting opinion.

When, If At All, May The Court Reverse Itself?

The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section 11(b) of R.A.
6646 is a reasonable restriction on the freedom of expression guaranteed by the
Constitution. 2 Our six-year experience with the ban on political advertisements, however,
constrains me to dissent. While it is desirable, even imperative, that this Court, in accordance with
the principle of stare decisis, afford stability to the law by hewing to doctrines previously
established, said principle was never meant as an obstacle to the abandonment of established
rulings where abandonment is demanded by public interest and by circumstances. 3 Reverence for
precedent simply as precedent cannot prevail when constitutionalism and public interest demand
otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or
modified accordingly. More pregnant than anything else is that the court should be right. 4

I submit that our country's past experience in the 1992 and 1995 elections, as well as
contemporary events, has established that Section 11(b) of R.A. 6646 falls short of the
rigorous and exacting standard for permissible limitation on free speech and flee press.

In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section 11(b),
pronouncing the same to be authorized by Article IX(C), Section 4 of the Constitution which
reads:
Sec. 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forms among candidates in connection with the
objective of holding free, orderly, honest, peaceful and credible elections.

Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution, is
essentially an express manifestation of the comprehensive police power of the State.

Police power, it has been declared often enough, rests upon public necessity and upon the
right of the state and the public to self-protection. For this reason, its scope expands and
contracts with changing needs. 5 In the words of Mr. Justice Isagani A. Cruz:

Police power is dynamic, not static, and must move with the moving society it is
supposed to regulate. Conditions change, circumstances vary; and to every such
alteration the police power must conform. What may be sustained as a valid exercise
of the power now may become constitutional heresy in the future under a different
factual setting. Old notions may become outmoded even as new ideas are born,
expanding or constricting the limits of the police power. For example, police
measures validly enacted fifty years ago against the wearing of less than sedate
swimsuits in public beaches would be laughed out of court in these days of
permissiveness. . . (T)he police power continues to change even as constraints on
liberty diminish and private property becomes more and more affected with public
interest and therefore subject to regulation" (Emphasis ours). 6

Thus, when the temper and circumstances of the times necessitate a review, this Court
should not hesitate to reverse itself, even on constitutional issues; for the legal problems
with which society is beset continually cannot be merely considered in the abstract, but must
be viewed in light of the infinite motley facets of human experience. As aptly stated by Mr.
Justice Holmes, "The life of the law has not been logic: it has been experience."

By way of illustration, we first held, in the celebrated Flag Salute Case, 7 that:

the flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which
it and the Constitution guarantee and protect. Under a system of complete separation
of church and state in the government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious ceremony. The flag
salute is no more a religious ceremony than the taking of an oath of office by a public
official or by a public candidate for admission to the bar.

xxx xxx xxx

The children of Jehovah's Witnesses cannot be exempted from participation in the


flag ceremony. They have no valid right to such exemption. Moreover, exemption to
the requirement will disrupt school discipline and demoralize the rest of the school
population which by far constitute the great majority.
The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent authority.

The Court further predicted that exempting Jehovah's Witnesses from participating in the flag
ceremony would ultimately lead to a situation wherein:

[T]he flag ceremony will become a thing of the past or perhaps conducted with very
few participants, and the time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism-a pathetic, even tragic situation, and all
because a small portion of the school population imposed its will, demanded and was
granted an exemption.

Thirty-two years later, events caught up with the changing political climate, such that an
undivided Court pronounced, in Ebralinag v. The Division Superintendent of Schools of
Cebu 8 that:

the idea that one may be compelled to salute the flag, sing the national anthem, and
recite the patriotic pledge, during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their
right to free speech and the free exercise of religious profession and worship.

xxx xxx xxx

The sole justification for a prior restraint or limitation on the exercise of religious
freedom is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent. Absent such
a threat to public safety, the expulsion of petitioners from the schools is not justified.

The Court held that its earlier prediction of dire consequences had not come to pass. It
concluded that exempting Jehovah's Witnesses from attending flag ceremonies would not
produce a nation "untaught and uninculcated in and not imbued with reverence for the flag
and love of country, admiration for national heroes, and patriotism."

In much the same manner, in the early case of People v. Pomar, 9 the Court struck down as
violative of the freedom of contract, a statute prescribing a thirty-day vacation with pay both
before and after confinement arising from pregnancy. The Court said:

The rule in this jurisdiction is, that the contracting parties may establish any
agreements, terms, and conditions they may deem advisable, provided they are not
contrary to law, morals or public policy.

Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled that
the right to contract about one's affairs is a part of the liberty of the individual guaranteed by
the due process clause. The Court also cited the "equality of right" principle, holding that
"(i)n all such particulars the employer and the employee have equality of right, and any
legislation that disturbs that equality is an arbitrary interference with the liberty of contract,
which no government can legally justify in a free land . . . Police power, the Court conceded,
is an expanding power; but it cannot grow faster than the fundamental law of the state . . . If
the people desire to have the police power extended and applied to conditions and things
prohibited by the organic law, they must first amend that law. 10

Sixteen years later, the validity of the above pronouncement was rejected by the Court
in Antamok Goldfields Mining Co. v. CIR, 11 which rationalized its volte-face stance, thus: "(i)n
the midst of changes that have taken place, it may likewise be doubted if the pronouncement
made by this court in the case of People v.Pomar . . . still retains its virtuality as a living principle.
The policy of laissez faire has to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with public interests."

Similarly, events subsequent to the Court's ruling in Avelino v. Cuenco 12 impelled the Court to
reverse its original position. In this case, the Court initially refused to take cognizance of the
raging controversy to determine who was the rightful president of the Philippine Senate, ruling
that in view of the separation of powers, the question was a political one not within its jurisdiction.
Despite such a ruling, almost one-half of the members of the Senate refused to acknowledge
Mariano Cuenco as the acting President, as a result of which legislative work came to a standstill.
In the words of Justice Perfecto, "the situation has created a veritable national crisis, and it is
apparent that solution cannot be expected from any quarter other than this Supreme Court. . . .
The judiciary ought to ripen into maturity if it has to be true to its role as spokesman of the
collective conscience, of the conscience of humanity." The Court, thus, assumed jurisdiction over
the case, rationalizing that supervening events justified its intervention.

From the foregoing, it can be seen that the inexorable march of events, and the liberalizing
winds of change may very well signal a needed shift in our conception of the permissible
limits of regulation in the name of police power. Verily, while the validity of NPC
v. COMELEC may have been etched on granite at the time of its promulgation, events
subsequent thereto now call into question the very underpinnings of said ponencia. To my
mind, the hoary maxim that "time upsets many fighting faiths" still holds true, and the Court
must be ever resilient and adaptable in order to meet the protean complexities of the present
and future generation.

In NPC v. COMELEC, the Court held that:

(N)o presumption of invalidity arises in respect of exercises of supervisory or


regulatory authority on the part of the Comelec for the purpose of securing equal
opportunity among candidates for political office, although such supervision or
regulation may result in some limitation of the right of free speech and free press. For
supervision or regulation of the operations of media enterprises is scarcely
conceivable without such accompanying limitation. Thus, the applicable rule is the
general, time-honored one — that a statute is presumed to be constitutional and that
the party asserting its unconstitutionality must discharge the burden of clearly and
convincingly proving that assertion.

This upends the familiar holding that "any system of prior restraint of expression comes to
this Court bearing a heavy presumption against its constitutional validity, with the
Government carrying a heavy burden of showing justification for the enforcement of such a
restraint." 13 This presumption was even reiterated in the recent case of Iglesia ni Cristo
v. CA, 14 wherein we ruled that "deeply ensconced in our fundamental law is its hostility against all
prior restraints on speech . . . Hence, any act that restrains speech is hobbled by the presumption
of invalidity and should be greeted with furrowed brows. It is the burden of the respondent . . . to
overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck
down." NPC v. COMELEC, insofar as it bestows a presumption of validity upon a statute
authorizing COMELEC to infringe upon the right of free speech and free press, constitutes a
departure from this Court's previous rulings as to mandate its re-examination.

In this connection, it bears emphasis that NPC v. COMELEC was the product of a divided
court, marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez, and Paras.
This fact gains significance when viewed in light of the changes in the composition of the
court. While a change in court composition, per se, does not authorize abandonment of
decisional precedents, it is apropos to keep in mind the pronouncement by the Court
in Philippine Trust Co. and Smith, Bell and Co. v. Mitchell. 15which reads as follows:

Is the court with new membership compelled to follow blindly the doctrine of the
Velasco case? The rule of stare decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But idolatrous reverence for precedent,
simply as precedent, no longer rules. More important than anything else is that the
court should be right. (Emphasis ours)

Are The Restrictions Imposed by Sec. 11(b) Of R.A.


6646 on Freedom of Expression Valid?

Preliminaries having been disposed of, we proceed to the crux of the matter. Freedom of
speech has been defined as the liberty to know, to utter and to argue freely according to
conscience, above all liberties. It thus includes, not only the right to express one's views, but
also other cognate rights relevant to the free communication of ideas, not excluding the right
to be informed on matters of public concern.

The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on the
freedom of expression, to be valid. First, the prohibition is limited in the duration of its
applicability and enforceability to election periods. Precisely, this is what makes the
prohibition more odious. It is imposed during the campaign period when the electorate
clamors for more and accurate information as their basis for intelligent voting. To restrict the
same only defeats the purpose of holding electoral campaigns — to inform the qualified voter
of the qualifications of candidates for public office, as well as the ideology and programs of
government and public service they advocate, to the end that when election time comes, the
right of suffrage may be intelligently and knowingly, if not always wisely, exercised. Opening
all avenues of information to the estimated 36.4 million voters is crucial for their intelligent
exercise of the right of suffrage in the May 11 polls, considering that they will be voting for an
average of thirty elective positions. 16

Second, the prohibition is of limited application, as the same is applied only to the purchase
and sale of print space and air time for campaign or other political purposes. "Section 11(b)
does not purport in any way to restrict the reporting by newspapers or radio or television
stations of news or newsworthy events relating to candidates, their qualifications, political
parties and programs of government." It does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in
respect of candidates, their qualifications, and programs and so forth. To be sure,
newspapers, radio, and television stations may not be restricted from reporting on
candidates, their qualifications, and programs of government, yet, admittedly, the freedom of
expression of the candidates themselves in the manner they choose to, is restricted.
Candidates are thereby foreclosed from availing of the facilities of mass media, except
through the filtering prism of the COMELEC.
Not to be overlooked is the stark truth that the media itself is partisan. In a
study 17 commissioned by the COMELEC itself to determine whether certain newspapers adhered
to the principles of fairness and impartiality in their reportage of the presidential candidates in the
1992 elections, the results disclosed that newspapers showed biases for or against certain
candidates. Hence, the contention that "Section 11(b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications and platforms and promises" simply
is illusory. Editorial policy will always ensure that favored candidates receive prominent coverage
while less favored ones will get minimal exposure, if at all. This underscores the need to give
candidates the freedom to advertise, if only to counteract negative reporting with paid
advertisements, which they cannot have recourse to with the present prohibition. Worse, the ban
even encourages corruption of the mass media by candidates who procure paid hacks,
masquerading as legitimate journalists, to sing them paeans to the high heavens. Wittingly or
unwittingly, the mass media, to the detriment of poor candidates, occasionally lend themselves to
the manipulative devices of the rich and influential candidates.

Finally, it is alleged that while Section 11(b) prohibited the sale or donation by mass media of
print space or air time for campaign or other political purposes, COMELEC, by way of
exception, was mandated to purchase print space or air time, which space and time it was
required to allocate, equally and impartially, among the candidates for public office. Hence,
whatever limitation was imposed by Section 11(b) upon the right to free speech of the
candidates was found not to be unduly repressive or unreasonable inasmuch as they could
still realize their objective as long as it was coursed through COMELEC. COMELEC it was
that shall decide what, who, which media to employ and the time allocation for the candidates
who signify their desire to avail of the agency's air time and print space. Why accord to
COMELEC such powers in the name of supervision and regulation at the expense of the
constitutionally hallowed freedom of expression?

Given the conditions then prevailing, the Court's ruling in NPC v. COMELEC may have been
valid and reasonable; yet today, with the benefit of hindsight, it is clear that the prohibition
has become a woeful hindrance to the exercise by the candidates of their cherished right to
free expression and concomitantly, a violation of the people's right to information on matters
of public concern. As applied, it has given an undue advantage to well-known popular
candidates for office.

In the hierarchy of fundamental civil liberties, the right of free expression occupies a
preferred position, 18 the sovereign people recognizing that it is indispensable in a free society
such as ours. Verily, one of the touchstones of democracy is the principle that free political
discussion is necessary if government is to remain responsive to the will of the people. It is a
guarantee that the people will be kept informed at all times sufficiently to discharge the awesome
responsibilities of sovereignty.

Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or
privilege of free speech and publication has its limitations, the right not being absolute at all
times and under all circumstances. For freedom of speech does not comprehend the right to
speak whenever, however, and wherever one pleases, and the manner, and place, or time of
public discussion can be constitutionally controlled. 19

Still, while freedom of expression may not be immune from regulation, it does not follow that
all regulation is valid. Regulation must be reasonable as not to constitute a repression of the
freedom of expression. First, it must be shown that the interest of the public generally, as
distinguished from that of a particular class requires such regulation. Second, it must appear
that the means used are reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals.
As to the first, in NPC v. COMELEC, this Court declared that the ban on political advertising
aims to assure equality of opportunity to proffer oneself for public service by equalizing, as
far as practicable, the situations of rich and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign "war chests."

While there can be no gainsaying the laudable intent behind such an objective, the State
being mandated to guarantee equal access to opportunities for public service, the prohibition
has had the opposite effect. Instead of "equalizing" the position of candidates who offer
themselves for public office, the prohibition actually gives an unfair advantage to those who
have had wide media exposure prior to the campaign period. Instead of promoting the
interests of the public in general, the ban promotes the interest of a particular class of
candidates, the prominent and popular candidates for public office. What is in store for the
relatively obscure candidate who wants to pursue his candidacy? Eager to trumpet his
credentials and program of government, he finds himself barred from using the facilities of
mass media on his own. While incumbent government officials, show business personalities,
athletes and prominent media men enjoy the advantage of name recall due to past public
exposure, the unknown political neophyte has to content himself with other fora, which,
given the limited campaign period, cannot reach the electorate as effectively as it would
through the mass media. To be sure, the candidate may avail himself of "COMELEC Space"
and "COMELEC Time," but the sheer number of candidates does not make the same an
effective vehicle of communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral
Argument held by the Court en banc, admitted that no candidate has as yet applied for
COMELEC air time and space.

More telling, the celebrities are lavished with broader coverage from newspapers, radio and
television stations, as well as via the commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or columnists, as they are deemed more
newsworthy by media, thus generating a self-perpetuating cycle wherein political unknowns,
who may be more deserving of public office, campaign in relative obscurity compared to their
more popular rivals. Instead of equalizing opportunities for public service, the prohibition not
only perpetuates political inequality, but also invidiously discriminates against lesser-known
candidates.

While Article IX(C), Section 10 of the Constitution provides that "(b)ona fide candidates for
any public office shall be free from any form of harassment and discrimination," Article IX(C),
Section 4 is nothing if not antithetical to the former provision as, in its application, it is
productive of a situation wherein political neophytes are blatantly discriminated against.
Much as we recognize the basic canon in Constitutional construction that the Constitution
must be interpreted in such a way as to harmonize all its provisions if the Charter is to be
construed as a single, comprehensive document and not as a series of disjointed articles or
provisions, the predictable effect is for one provision to negate the other.

As to the second requisite, experience shows that the ban on political advertisements has
not been reasonably necessary to accomplish its desired end. First, there are more than 70
provinces, more than 60 cities and more than a thousand municipalities spread all over the
archipelago. Previous elections have shown that the ban on political advertising forces a
candidate to conduct a nationwide whistle-stop campaign to attain maximum exposure of his
credentials and his program of government. Obviously, this necessitates tremendous
resources for sundry expenses indispensable for political campaigns, all within a limited
period of 90 days. Given the enormous logistics needed for such a massive effort, what are
the chances for an impecunious candidate who sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority of the populace more
than other instruments of information and dissemination, being the most pervasive, effective,
and inexpensive. A 30-second television advertisement, costing around P35,000.00 at present
rates, would, in an instant, reach millions of viewers around the country in the comfort of
their homes. Indeed, the use of modern mass media gives the poor candidate the opportunity
to make himself known to the electorate at an affordable cost. Yet, these means of
communication are denied such candidates due to the imagined apprehension that more
affluent candidates may monopolize the airwaves. This fear, however, need not materialize as
the COMELEC is precisely empowered to regulate mass media to prevent such a monopoly.
Likewise, the ceiling on election spending imposed by law upon all candidates, regardless,
will also serve as a deterrent.

Second, the means employed is less than effective, for with or without the ban, moneyed
candidates, although similarly barred from buying mass media coverage, are in a position to
lavish their funds on other propaganda activities which their lesser-endowed rivals can ill-
afford. Furthermore, we take judicial notice of the inability of COMELEC to enforce laws
limiting political advertising to "common poster areas." Many places in cities have been
ungainly plastered with campaign materials of the better off candidates. What use is there in
banning political advertisements to equalize the situation between rich and poor candidates,
when the COMELEC itself, by its failure to curb the political excesses of candidates,
effectively encourages the prevailing disparities? Why then single out political advertising?
What is the reasonable necessity of doing so?

To be realistic, judicial notice must be taken of the fact that COMELEC, in narrowing down its
list of "serious" candidates, considers in effect a candidate's capability to wage an effective
nationwide campaign — which necessarily entails possession and/or availability of
substantial financial resources. Given this requirement, the objective of equalizing rich and
poor candidates may no longer find relevance, the candidates ultimately allowed to run being
relatively equal, as far as resources are concerned. Additionally, the disqualification of
nuisance candidates, allegedly due to their inability to launch serious campaigns, itself casts
doubt on the validity of the prohibition as a means to achieve the state policy of equalizing
access to opportunities for public service. If poor and unknown candidates are declared unfit
to run for office due to their lack of logistics, the political ad ban fails to serve its purpose, as
the persons for whom it has been primarily imposed have been shunted aside and thus, are
unable to enjoy its benefits.

It must be kept in mind that the holding of periodic elections constitute the very essence of a
republican form of government, these being the most direct act and participation of a citizen
in the conduct of government. In this process, political power is entrusted by him, in concert
with the entire body of the electorate, to the leaders who are to govern the nation for a
specified period. To make this exercise meaningful, it is the duty of government to see to it
that elections are free and honest and that the voter is unhampered by overt and covert
inroads of fraud, force and corruption so that the choice of the people may be untrammelled
and the ballot box an accurate repository of public opinion. And since so many
imponderables may affect the outcome of elections — qualifications of voters and
candidates, education, means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter's resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly, association and organizations,
both by the candidate and the voter, becomes a sine qua non for elections to truly reflect the
will of the electorate.

With the prohibition on political advertisements except through the Comelec space and time,
how can a full discussion of men, issues, ideologies and programs be realized? Article III,
Section 4 of the Constitution provides that "(n)o law shall be passed abridging the freedom of
speech, of expression, of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances." Implicit in this guarantee is the right of
the people to speak and publish their views and opinions on political and other issues,
without prior restraint and/or fear of subsequent punishment. Yet Section 11(b), by
authorizing political advertisements only via the COMELEC effectively prevents the
candidates from freely using the facilities of print and electronic mass media to reach the
electorate. A more blatant form of prior restraint on the free flow of information and ideas can
hardly be imagined. To be sure, it does not constitute an absolute restriction, but it is
restriction nonetheless, as odious and insidious as any that may be conceived by minds
canalized in deepening grooves.

I hold that, given our experience in the past two elections, political advertisements on radio
and television would not endanger any substantial public interest. Indeed, allowing
advertisements would actually promote public interest by furthering public awareness of
election issues. The objective, equalizing opportunities for public service, while of some
immediacy during election times, does not justify curtailing the citizen's right of free speech
and expression.

Not only must the danger be patently clear and pressingly present but the evil sought
to be avoided must be so substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled. For these reasons, any attempt to restrict these
liberties must be justified by clear public interest, threatened not doubtfully or
remotely but by clear and present danger. The rational connection between the
remedy provided and the evil to be curbed, which in other context might support
legislation against attack on due process grounds, will not suffice. These rights rest
on firmer foundation. Accordingly, whatever occasion would restrain orderly
discussion and persuasion, at appropriate time and place, must have clear support in
public danger, actual or impending. Only the greatest abuses, endangering permanent
interests, give occasion for permissible limitation. 20

No such clear and present danger exists here as to justify banning political advertisements
from radio and television stations.

Past experience shows that the COMELEC has been hard put effectively informing the voting
populace of the credentials, accomplishments, and platforms of government of the
candidates. There are 17,396 national and local elective public positions 21 which will be
contested by an estimated 100,000 candidates 22 on May 11, 1998. For national positions, the list
has been trimmed down to 11 candidates for president, 9 candidates for vice-president, and 40
candidates for senator. It is difficult to see how the number of candidates can be adequately
accommodated by "COMELEC Space" and "COMELEC Time." Resolution No. 2983 of the
COMELEC, issued in compliance with Section 92 of B.P. 881, mandates that at least thirty minutes
or prime time be granted to the Commission, free of charge, from February 10, 1998 until May 9,
1998. 23 Thirty minutes of prime-time for eighty-nine days (89) is scarcely enough time to introduce
candidates to the voters, much less to properly inform the electorate of the credentials and
platforms of all candidates running for national office. Let us be reminded that those running for
local elective positions will also need to use the same space and time from March 27 to May 9,
1998, and that the COMELEC itself is authorized to use the space and time to disseminate vital
election information. 24 Clearly, "COMELEC Space" and "COMELEC Time" sacrifices the right of
the citizenry to be sufficiently informed regarding the qualifications and programs of the
candidates. The net effect of Section 11(b) is, thus, a violation of the people's right to be informed
on matters of public concern and makes it a palpably unreasonable restriction on the people's
right to freedom of expression. Not only this, the failure of "Comelec Space" and "Comelec Time"
to adequately inform the electorate, only highlights the unreasonableness of the means employed
to achieve the objective of equalizing opportunities for public service between rich and poor
candidates.

Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisements are
allowed in fora other than modern mass media, thus: "aside from Section 11(b) of R.A. 6646
providing for 'COMELEC Space' and 'COMELEC Time,' Sections 9 and 10 of the same law
afford a candidate several venues by which he can fully exercise his freedom of expression,
including freedom of assembly." A concurring opinion points to the mandate of COMELEC to
encourage non-political, non-partisan private or civic organizations to initiate and hold in
every city and municipality, public fora at which all registered candidates for the same office
may participate in, the designation of common poster areas, the right to hold political
caucuses, conferences, meetings, rallies, parades, and other assemblies, as well as the
publication and distribution of campaign literature. All these devices conveniently gloss over
the fact that for the electorate, as shown in surveys by the Ateneo de Manila University's
Center for Social Policy and Public Affairs, mass media remains to be the most important and
accessible source of information about candidates for public office.

It must be borne in mind that the novel party-list system will be implemented in the
impending elections. The party-list system, an innovation introduced by the 1987
Constitution in order to encourage the growth of a multi-party system is designed to give a
chance to marginalized sectors of society to elect their representatives to the Congress. A
scheme aimed at giving meaningful representation to the interests of sectors which are not
adequately attended to in normal legislative deliberations, it is envisioned that system will
encourage interest in political affairs on the part of a large number of citizens who feel that
they are deprived of the opportunity to elect spokesmen of their own choosing under the
present system. It is expected to forestall resort to extra-parliamentary means by minority
groups which would wish to express their interests and influence governmental policies,
since every citizen is given a substantial representation. 25

Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas worker and professional sectors 26 will have the opportunity to elect representatives to
Congress. With the prohibition on political advertisements, however, those parties who wish to
have their candidates elected as sectoral representatives, are prevented from directly
disseminating their platforms of government through the mass media. The ban on political
advertisements thus serves as a deterrent to the development of self-reliance, self-development,
logistical and organizational capability on the part of sectoral parties/organizations, even as it
inhibits them from reaching their target audiences. What more effective way of depriving them of
the chance of consolidating a mass base sorely needed for a fair chance of success in a highly
competitive political exercise. Likewise, with the inability of the candidates to reach the sectors
they seek to represent, the right of the people belonging to these sectors to be informed on
matters of concern to them is likewise violated. 27

Finally, NPC v. COMELEC invokes the specter of the "captive audience" to justify its stand
against political advertisements. Describing political advertisements as "appealing to the
non-intellective faculties of the captive and passive audience," it says that anyhow, the only
limitation imposed by Section 11(b) upon the free speech of candidates is on their right to
bombard the helpless electorate with paid advertisements commonly repeated in the mass
media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the like, it is
not for this Court to determine what the people may or may not watch or read. Even "mind-
numbing" political advertisements are subject to the constitutional safeguard of due process.

Freedom Of Speech Expression Remains A Fresh


and Vital Verity

The guarantee of the freedom of speech which has been defined by Wendell Phillips as "the
instrument and guarantee and the bright and consummate flower of all liberty," has always
been granted a predominant status in the hierarchy of individual rights. 28 It is founded on the
belief that the final end of the state was to make men free to develop their faculties and that
freedom to think as you will and to speak as you think are means indispensable to the discovery
and spread of political truth. 29 Its purpose is to preserve an uninhibited marketplace of ideas
where truth will ultimately prevail. 30 "An individual who seeks knowledge and truth must hear all
sides of the question, consider all alternatives, test his judgment by exposing it to opposition and
make full use of different minds. Discussion must be kept open no matter how certainly true an
accepted opinion may be; many of the most widely accepted opinions have turned out to be
erroneous. Conversely, the same principles apply no matter how false or pernicious the new
opinion may be; for the unaccepted opinion may be true and partially true; and even if false, its
presentation and open discussion compel a rethinking and retesting of the accepted opinion. 31 As
applied to instant case, this Court cannot dictate what the citizen may watch on the ground that
the same appeals only to his non-intellective faculties or is mind-deadening and repetitive. A
veritable "Big Brother" looking over the shoulder of the people declaring: "We know better what is
good for you," is passé.

As to the puerile allegation that the same constitutes invasion of privacy, making the Filipino
audience a "captive audience," the explosive growth of cable television and AM/FM radio will
belie this assertion. Today, the viewing population has access to 12 local TV channels, 32 as
well as cable television offering up to 50 additional channels. To maintain that political
advertisements constitute invasion of privacy overlooks the fact that viewers, with the surfeit of
channels, can easily skip to other TV channels during commercial breaks — a fact which, coupled
with the now ubiquitous remote control device, has become the bane of advertisers everywhere.

The line between gaining access to an audience and forcing the audience to hear is
sometimes difficult to draw, leaving the courts with no clearcut doctrine on issues arising
from this kind of intrusion. This is specially true in cases involving broadcast and electronic
media. The US cases cited as authorities on the captive audience phenomenon, which,
incidentally, did not involve the issue of election campaigns, 33 provide little guidance as to
whether freedom of speech may be infringed during the campaign period for national elections on
account of the individual's right to privacy. 34 Prudence would dictate against an infringement of
the freedom of speech if we are to take into consideration that an election campaigns is as much a
means of disseminating ideas as attaining political office 35 and freedom of speech has its fullest
and most urgent application to speech uttered during election campaigns. 36 In Buckley v. Valeo, a
case involving the constitutionality of certain provisions of the Federal Election Campaign Act,
the United States Supreme Court per curiam held that:

the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the
First Amendment which was designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people. (emphasis supplied) 37
The fear that the candidates will bombard the helpless electorate with paid advertisements,
while not entirely unfounded, is only to be expected considering the nature of political
campaigns. The supposition however that "the political advertisements which will be
"introjected into the electronic media and repeated with mind deadening frequency" are
commonly crafted not so much to inform and educate as to condition and manipulate, not so
much to provoke rational and objective appraisal of candidates' qualifications or programs as
to appeal to the intellective faculties of the captive and passive audience" is not a valid
justification for the infringement of so paramount a right granted by the Constitution
inasmuch as it is the privilege of the electorate in a democratic society to make up their own
minds as to the merit of the advertisements presented. The government derives its power
from the people as the sovereign and it may not impose its standards of what is true and
what is false, what is informative and what is not for the individual who, as a "particle" of the
sovereignty is the only one entitled to exercise this privilege.

Government may regulate constitutionally protected speech in order to promote a compelling


interest if it chooses the least restrictive means to further the said interest without
unnecessarily interfering with the guarantee of freedom of expression. Mere legislative
preference for one rather than another means for combating substantive evils may well be an
inadequate foundation on which to rest regulations which are aimed at or in their operation
diminish the effective exercise of rights so necessary to maintenance of democratic
institutions. 38

It should be noted that legislature has already seen fit to impose a ceiling on the candidates'
total campaign expenditures 39 and has limited the political campaign period to 90 days for
candidates winning for national office and 60 days for congressmen and other local officials. With
these restrictions, it cannot be gainsaid that the constitutional provision on social justice has
been sufficiently complied with. We see no reason why another restriction, must be imposed
which only burdens the candidate and voters alike. To make matters worse, we are not even
certain as to the efficacy of the "ad ban" in curtailing the feared consequences of the object of its
restriction. Of course, this is not to say that the law is being struck down as unconstitutional
mainly because it is efficacious or inefficacious. If this is the only issue which confronts us, there
would have been no need to give due course to the petition inasmuch as we would be inquiring as
to the wisdom of the law and treading into an area which rightfully belongs to the legislature.
Verily, courts cannot run a race of opinions upon points of right, reason and expediency with the
law-making power. 40

Freedom of Expression Incompatible With Social Justice?

The constitutional question at hand is not just a simple matter of deciding whether the "ad
ban" is effective or ineffective in bridging the financial disparity between the rich and poor
candidates. Sec 11(b) of RA No. 6646 strikes at the very core of freedom of expression. It is
unconstitutional not because we are uncertain as to whether it actually levels the playing
field for the candidates but because the means used to regulate freedom of expression is on
all points constitutionally impermissible. It tells the candidates when, where and how to
disseminate their ideas under pain of punishment should they refuse to comply. The
implications of the ban are indeed more complex and far reaching than approximating
equality among the rich and poor candidates.

The primacy accorded the freedom of expression is a fundamental postulate of our


constitutional system. The trend as reflected in Philippine and American decisions is to
recognize the broadest scope and assure the widest latitude to this guaranty. It represents a
profound commitment to the principle that debate of public issue should be uninhibited,
robust and wide open and may best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are or even stirs people to anger. 41

The repression of expression in an attempt to level the playing field between the rich and the
poor candidates is not only unrealistic but goes beyond the permissible limits of freedom of
expression as enshrined in the constitution. Social justice is a laudable objective but it
should not be used as a means to justify infringement of the freedom of expression if it can
be achieved by means that do not unnecessarily trench on the individual's fundamental right.
The case of Guido v. Rural Progress Administration, 42 is particularly enlightening. In said case,
we had occasion to state that:

Hand in hand with the announced principle, herein invoked, that "the promotion of
social justice to insure the well being and economic security of all people should be
the concern of the state", is a declaration with which the former should be reconciled,
that "the Philippines is a Republican state" created to secure to the Filipino people
"the blessings in independence under a regime of justice, liberty and democracy."
Democracy as a way of life enshrined in the Constitution, embraces as its necessary
components freedom of conscience, freedom of expression, and freedom in pursuit of
happiness. . . . Social justice does not champion division of property or equality of
economic status; what it and the Constitution do guarantee are equality of economic
opportunity, equality of political rights, equality before the law, equality between
values given and received . . .

While we concede the possibility that the rich candidates may dominate the airwaves to the
detriment of the poor candidates, the latter should not be prevented from replying. While they
may be restricted on account of their financial resources, they are not denied access to the
media altogether. This is what is meant by the phrase "equal time, space, equal opportunity
and the right of reply" under Article IX (C)(4) of the 1987 Constitution which was inserted by
the framers of the Constitution as a reaction to a 1981 ruling of the Supreme Court that when
the president speaks over radio or television, he speaks not as representative of his party but
of the people and therefore opposition parties have no right to demand equal time. 43

It is ironic that the guarantee of freedom of expression should be pitted against the
constitutional provision on social justice because the freedom of speech is the most potent
instrument of public opinion, not to speak of its being the most effective weapon for effecting
political and social reforms. Certainly, an infringement of the freedom of speech in a less
than heroic attempt at attaining social justice cannot be countenanced, for in the ultimate
analysis social justice cannot flourish if the people's right to speak, to hear, to know and ask
for redress of grievances is watered down.

A word on the intervenors' argument that Resolution No. 2983, Section 2, insofar as it directs
every radio broadcasting and television station to provide COMELEC with air time free of
charge constitutes taking of private property for public use without just compensation. The
COMELEC, anticipating its vulnerability to said challenge passed Resolution 2983-A on
March 3, 1998 requiring that it pay just compensation for its COMELEC time.

Buckley vs. Valeo and Existing US Jurisprudence

The novelist George Orwell once said, "In a society in which there is no law, and in theory no
compulsion, the only arbiter of behavior is public opinion. But public opinion, because of the
tremendous urge to conformity in gregarious animals, is less tolerant than any other system
of law." For want of legislature to equalize the playing field between the rich and the poor
candidates, it has, by imposing a complete prohibition on paid political advertisements,
burned down a house to roast a pig. For fear of accusations that it might be treading into an
area which rightfully belongs to the legislature, the Court today, by sanctioning an
unnecessary infringement on the freedom of speech, has unwittingly allowed the camel's
nose into the tent.

My colleague, Justice Reynato Puno, in his separate opinion, apparently overlooked the
thrust of our dissenting opinion when we quoted the case of Buckley v. Valeo. 44 Lest we be
misunderstood, we have in no way relied on the Buckley v. Valeo case for the grant of the instant
petition inasmuch as it has never escaped our notice that legislature has already seen fit to
impose a ceiling on the candidates' total campaign expenditures 45 Precisely, we have repeatedly
emphasized in the dissenting opinion that we see no reason why another restriction must be
imposed on the constitutional guarantee of freedom of speech which only burdens the candidates
and electorates alike when legislature has already taken steps to comply with the constitutional
provision on social justice by imposing a ceiling on the candidates' total campaign expenditures
and limiting the campaign period to 90 days for candidates running for national office and 60 days
for congressmen and other local officials. We have mentioned Buckley if only to underscore the
fact that due to the primacy accorded to freedom of speech, courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political content. To preserve the
sanctity of the status accorded to the said freedom, the US Supreme Court has, in fact, gone as
far as invalidating a federal law limiting individual expenditures of candidates running for political
office.

In any case, to address some misconceptions about existing jurisprudence on the matter, we
now present a brief discussion on Buckley and the preceding US cases. In the case
of Buckley v. Valeo, a divided US Supreme Court, per curiam held that a federal law limiting
individual contributions to candidates for office served the state's compelling interest in
limiting the actuality and appearance of corruption. However a law limiting expenditures by
candidates, individuals and groups was held unconstitutional. The rationale for the
dichotomy between campaign expenditures and contributions has been explained in this
wise — campaign contributions are marginal because they convey only an undifferentiated
expression of support rather than the specific values which motivate the support.
Expenditures, on the other hand, as directly related to the expression of political views, are
on a higher plane of constitutional values. The Court, in noting that a more stringent
justification is necessary for legislative intrusion into protected speech said, "A restriction on
the amount of money a person or a group can spend on political communication necessarily
reduces the quantity of expression by restricting the number of issues discussed, the depth
of their exploration, and the size of the audience reached. This is because virtually every
means of communicating in today's mass society requires the expenditure of money." 46

A more discerning scrutiny of the US cases following Buckley, would show that
while Buckley has been widely criticized, it has, to date, never been modified, much less
discredited. In California Medical Association vs. FEC, 47 a law limiting the amount an
incorporated association can contribute to a multi-candidate political committee was upheld. The
spending was viewed not as independent political speech but rather as "speech by proxy," hence,
the spending was deemed analogous to group contributions which can be regulated.

In FEC vs. National Conservative Political Action Comm. 48 the US Supreme Court invalidated a
section of the Presidential Election Campaign Fund Act which makes it a criminal offense for
an independent political committee to spend more than $1,000 to further the election of
a presidential candidate who elects public funding. National Conservative Political Action
Committee (NCPAC) and the Fund for a Conservative Majority (FCM), two political action
committees or PAC's, solicited funds in support of President Reagan's 1980 presidential
campaign. The PAC's spent these funds on radio and television advertising in support of Reagan.
The Court, relying onBuckley v. Valeo and the distinction it drew between expenditures and
contributions, held that the independent expenditures of the political committees were
constitutionally protected for they "produce speech at the core of the First Amendment"
necessitating a "rigorous standard of review." Justice Rehnquist, for the court, likened the
restriction to allowing a speaker in a public hall to express his views while denying him use of the
amplifier. As in Buckley, independent expenditures, not coordinated with candidates' political
campaign, were seen as presenting a lesser danger of political quid pro quos. The Court then
proceeded to reject efforts to support the statutory limitation on expenditures on the basis of
special treatment historically accorded to corporations inasmuch as the terms of the Campaign
Fund Act "apply equally to an informal neighborhood group that solicits contributions and spends
money on a presidential election campaign as to the wealthy and professionally managed PAC's."

In the case of FEC v. Massachussets Citizens for Life (MCFL), 49 a provision of the Federal
Election Campaign Act prohibiting direct expenditure of corporate funds to a non-profit, voluntary
political association concerned with elections to public office was struck down as
unconstitutional. No compelling government interest was found to justify infringement of
protected political speech in this case where a small voluntary political association, which had no
shareholders and was not engaged in business, refused to accept contributions from either
business corporations or labor unions.

In Austin v. Michigan Chamber of Commerce, 50 the case cited by Justice Puno, a Michigan
statute prohibiting corporations from making campaign contributions from their general treasury
funds to political candidates was held not to violate the first amendment even though the statute
burdened expressive activity mainly because the statute was sufficiently narrowed to support its
goal in preventing political corruption or the appearance of undue influence — it did not prohibit
all corporate spending and corporations were permitted to make independent expenditures for
political purposes from segregated funds but not from their treasuries. Notably, the non profit
corporation involved in this case, the Michigan Chamber of Commerce (hereinafter referred to as
the Chamber of Commerce), lacked three of the distinctive features of MCFL, the organization
involved in the FEC vs. National Conservative Political Action Comm 51 case, namely: (1) The
Chamber of Commerce, unlike MCFL, was not formed just for the purpose of political expression
(2) The members of the Chamber of commerce had an economic reason for remaining with it even
though they might disagree with its politics and (3) The Chamber of Commerce, unlike MCFL, was
subject to influence from business corporations which might use it as a conduit for direct
spending which would pose a threat to the political marketplace.

From the foregoing, it should be obvious that Austin in fact supports the holding in Buckley
v. Valeoand "refines" it insofar as as it allows the regulation of corporate spending in the
political process if the regulation is drawn with sufficient specificity to serve the compelling
state interest in reducing the threat that "huge corporate treasuries" will distort the political
process and influence unfairly the outcome of elections.

The ad ban, undoubtedly, could hardly be considered as a regulation drawn with sufficient
specificity to serve compelling governmental interest inasmuch as it imposes a complete
prohibition on the use of paid political advertisements except through Comelec time and
space despite the fact that Congress has already seen fit to impose a ceiling on the
candidates' total campaign expenditures. While it seems a rather fair proposition that
Congress may regulate the misuse of money by limiting the candidates' total campaign
expenditures, it seems a rather curious supposition that Congress through the ad ban can
regulate the misuse of money by telling the candidates how, when and where to use their
financial resources for political campaigns. Obviously, it is one thing to limit the total
campaign expenditures of the candidates and another to dictate to them as to how they
should spend it.
Freedom of expression occupies a preferred position in the hierarchy of human values. The
priority gives the liberty a sanctity and a sanction not permitting dubious intrusions and it is
the character of the right, not the limitation which determines what standard governs the
choice. 52 Consequently, when the government defends a regulation on speech as a means to
redress past harm or prevent anticipated harm, it must do more than simply "posit the existence
of the disease sought to be cured. 53 It must demonstrate that the recited harms are real, not
merely conjectural and that the regulation will alleviate these harms in a material way. 54

As earlier pointed out, legislature has already seen fit to impose a ceiling on the total
campaign expenditures of the candidates and has limited the campaign period for 90/60 days.
We see no reason why another restriction must be imposed which only burdens the
candidates and voters alike. The fact alone that so much time has been devoted to the
discussion as to whether the ad ban does in fact level the playing field among the rich and
poor candidates should be a strong indication in itself that it is a dubious intrusion on the
freedom of expression which should not be countenanced.

Illegitimate and unconstitutional practices make their initial foothold by furtive approaches
and minimal deviations from legal modes of procedure. Hence, courts must be extremely
vigilant in safeguarding the fundamental rights granted by the Constitution to the individual.
Since freedom of expression occupies a dominant position in the hierarchy of rights under
the Constitution, it deserves no less than an exacting standard of limitation. Limitations on
the guarantee must be clearcut, precise and, if needed readily controllable, otherwise the
forces that press towards curtailment will eventually break through the crevices and freedom
of expression will become the exception and suppression the rule. 55 Sadly, the much vaunted
ad ban failed to live up to such standard and roseate expectations.

Freedom of Expression In Historical Context

At this juncture, as we celebrate the Centennial of our Philippine Independence, it is timely to


call to mind that wars and revolutions have been fought, not only in our shores and in our
time, but in centuries past, halfway around the globe to keep these subject rights inviolate.
To stretch our memories, Spain's adamant denial of basic freedoms to our hapless
forefathers, among others, sparked the Philippine revolution. Jose Rizal, in "Filipinas
Despues de Cien Años" 56 described the reform a sine quibus non, saying, "The minister, . . . who
wants his reforms to be reforms, must begin by declaring the press in the Philippines free." The
Filipino propagandists who sought refuge in the freer intellectual climate of Spain invariably
demanded "liberty of the press, of cults, and of associations 57 through the columns of "La
Solidaridad."

One of the more lofty minds unleashed his fierce nationalistic aspirations though the novels
Noli Me Tangere and El Filibusterismo, necessarily banned from the author's native land.
Eventually, the seeds of these monumental works ignited the flame of revolution, devouring
in the process its foremost exponent, albeit producing a national hero, Jose Rizal. The mighty
pen emerged victorious over the colonizers' sword.

The Malolos Constitution, approved before the turn of century on January 20, 1899, enshrined
freedom of expression in Article 20 of its Bill of Rights, thus:

Article 20 Neither shall any Filipino be deprived:

1. Of the right to freely express his ideas or opinions, orally or in writing, through the
use of the press or other similar means. 58
This right, held sacrosanct by the Filipino people and won at the cost of their lives found its
way ultimately in the Constitutions of a later day, reenforced as they were, by the profound
thoughts transplanted on fertile soil by libertarian ideologies. Why emasculate the freedom of
expression now to accord a governmental agency a power exercisable for a limited period of
time for the dubious purpose of "equalizing" the chances of wealthy and less affluent
candidates?

In summary, I hold that Section 11(b) of R.A. 6646, in the six years that have elapsed since it
was upheld as being in consonance with the fundamental law, has now become out of sync
with the times and, therefore, unreasonable and arbitrary, as it not only unduly restrains the
freedom of expression of candidates but corollarily denies the electorate its fullest right to
freedom of information at a time when it should flourish most.

For the reasons stated above, I VOTE to declare Section 11(b) of R.A. 6646
UNCONSTITUTIONAL.

Quisumbing and Purisima, JJ., dissent.

PANGANIBAN, J., dissenting;

The Court, by a majority vote, decided to uphold the ban on political advertising, as provided,
under Section 11(b) 1 of RA 6646, and to reiterate the 1992 ruling in National Press Club
vs. Comelec 2 for two main reasons:

1. To equalize "as far as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered by huge campaign
'war chests.'" In other words, the intention of the prohibition is to equalize the
"political playing field" for rich and poor candidates.

2. While conceding that Section 11(b) of RA 6646 "limit[s] the right of free speech and
of access to mass media of the candidates themselves," the Court justifies the ad ban
by alleging that: (a)it is limited, first, in its "duration," (i.e. the ban applies only during
the "election period") and, second, in its "scope" (i.e. the prohibition on the sale and
the donation of print space and air time covers only those for "campaign and other
political purposes", time does not restrict the legitimate reporting of news and
opinions by media practitioners who are not candidates); and (b) the Comelec is
authorized to procure, by purchase or donation, media time and space which are to be
fairly, freely and equally distributed among the candidates. Otherwise stated, the grant
of Comelec time and space, free of charge, to said candidates makes up for the
admitted infringement of the constitutional right to free speech and access to mass
media during the campaign period.

With all due respect, I disagree with the majority's view and join the stirring Dissenting
Opinions of Justices Hugo E. Gutierrez, Jr., 3 Isagani A.
Cruz 4 and Edgardo L. Paras 5 in NPC vs. Comelec, and of Justice Flerida Ruth P. Romero in the
present case. I will no longer repeat their cogent legal arguments. Let me just add my own.

1. Ad Ban Not Pro-Poor


but Anti-Poor
The majority argues that the ad ban is pro-poor, because it prevents the rich from buying
media time and space which the poor cannot afford or match. This argument assumes that
media advertising is expensive and, thus, beyond the reach of the poor.

I respectfully submit that such argument is bereft of factual basis. True, a full-page ad in a
major broadsheet 6 may be priced at about P100,000; a 30-second commercial in a major
television channel, 7anywhere from P15,000 to P90,000 depending on the time and the program;
while air time of an equal duration in a leading radio station, anywhere from P300 to P4,500. 8 But
even with such price tags, media ads are not necessarily expensive, considering their nationwide
reach, audience penetration, effectiveness and persuasive value.

Realistically, expenses are involved in a candidacy for a national office like the presidency,
the vice presidency, and the senate. In recognition of this, the law has limited campaign
expenditures to ten pesos (P10) for every voter in the case of candidates for president and
vice president, and three pesos (P3) per voter in their constituencies, for other
candidates. 9 Anyone — whether rich or poor — who aspires for such national elective office must
expect to spend a considerable sum, whether of his own or from allowable donations, to make
himself and his platform or program of government known to the voting public.

Media Ads

Comparatively Cheaper

While a one-page black-and-white ad in a major daily costs about P100,000, it is replicated,


however, in about 250,000 copies 10 circulated to an equal number of offices and
households nationwide on the very same day of its publication. Each newspaper copy has an
average readership of six. Hence, the ad is exposed to about 1.5 million (250,000 x 6) people all
over the country. Consider, too, that people discuss what they read while they congregate in
barber shops, corner stores, and other places where people gather. Sometimes, radio and TV
broadcasters pick up and comment on what they read in newspapers. So, the reach, pass-on
readership, multiplier effect and effectivity of a broadsheet ad are practically immeasurable.

On the other hand, let us consider the alternative of printing and distributing a poster or
handbill of similar size. The actual printing cost of such handbill on newsprint is twenty
centavos (P.20) per copy.11 The cost of P250,000 copies (the circulation of a major daily) would
thus be P50,000 (250,000 x P.20). But that is only the printing cost. To disseminate these handbills
nationwide on the same day of printing without the distribution network of a major newspaper is
almost impossible. Besides, the cost would be horrendous. To approximate the circulation of a
major newspaper, the most practical substitute would be the mails. Ordinary mail is now P4.00 per
posting. Hence, the distribution cost through the mails would be P1 million (250,000 copies x
P4.00). And this does not include the manual work and cost of sorting, folding and individually
addressing these 250,000 pieces of mail matter. (This alternative assumes the availability of a
mailing list equivalent to the reach of a newspaper.) Even if third-class mail is used, the
distribution cost alone will still be P3.00 per individual mailing, or P750,000 for all 250,000
copies. 12

This alternative is not only much more expensive but much less effective as well, because it
has no guarantee of same-day delivery, has a diminished readership multiplier effect and is
tremendously cumbersome in terms of sorting and distribution.

Furthermore, a candidate need not buy one-page ads. He can use quarter-page ads at one
fourth the cost or about P25,000 only per issue. To be effective in his ad campaign, he may
need to come out once every three days (to be spread out among the different dailies) or 30
times during the 90-day campaign period 13 for national candidates. Hence, he will spend, for the
entire duration of the campaign, about P750,000 (P25,000 x 30). I repeat, to advertise a one-fourth
page ad at least 30 times in various major dailies, a candidate needs to spend only P750,000 — an
amount less than the alternative of printing and distributing nationwide ONLY ONCE a less timely
and less effective equivalent leaflet or poster.

A similar detailed comparison of cost-benefit could be written for radio and television. While,
at initial glance, the rates for these electronic media may appear high, still they could be
proven more beneficial and cheaper in the long term because of their "value-for-money"
appeal. 14

Candidates Should Not Be Denied


Option to Use Media Ads

From the foregoing, it is clear that mass media truly offers an economical, practical, and
effective meansby which a relatively unknown but well-qualified political candidate who has
limited resources, particularly one running for a national office, may make known to the
general public during the shortcampaign period 15 his qualifications, platform of government,
stand on vital issues, as well as his responses to questions or doubts about his capabilities, his
character or any other matter raised against him. Deprived of media ads, the rich candidate, unlike
his poor opponent, resorts to expensive propaganda — the holding of public meetings and rallies
before large but oftentimes "paid" crowds, helicopter stops and motorcades spanning several
towns and cities, the production of ingenious materials, giveaways and other products, and the
incessant printing and distribution of various campaign paraphernalia. These forms of electoral
promotion ineluctably require a large political machinery and gargantuan funds (organization +
people/supporters + communication gadgets + vehicles + logistics). To combat this formidable
and expensive election behemoth, the poor candidate's most viable alternative may be media
advertising.

In NPC vs. Comelec, it was feared that the "unlimited purchase of print space and radio and
television time . . . by the financially affluent [was] likely to make a crucial difference." But I
say such fear is unfounded. First, because campaign expenses are limited by law. Second,
the possibility of the abuse and misuse of media ads by the "financially affluent" is not an
argument in favor of their total withdrawal, for — to use the very words of the majority in NPC
— "there is no power or authority in human society that is not susceptible of being
abused." 16 Third, the absence of access to media advertising totally deprives the poor candidate
of his most formidable weapon in combating the "huge campaign war chests" of rich contenders.

THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING SHOULD BE BANNED
BECAUSE ONLY THE RICH CAN AFFORD IT OR, FOR THAT MATTER, THEY MAY ABUSE OR
MISUSE IT. Quite the contrary, in terms of reach, pass-on readership, multiplier effect and
cost-benefit advantage, media advertising may be the cheapest and most effective campaign
mechanism available. I am not suggesting that every candidate should use media ads. In the
final analysis, it is really up to the candidates and their campaign handlers to adopt such
mode and means of campaigning as their budgets and political strategies may
require. 16a What I am stressing is that candidates, whether rich or poor, should be given the
option of campaigning through media, instead of being forced to use other forms of propaganda
that could turn out to be less effective and more expensive.

2. Ad Ban Not Limited;


Comelec Time and Space Inutile
I now come to the second major point. The majority rationalizes the ad ban by saying that it
has a very limited duration and scope and that, in any event, the Comelec's grant of free
media time and space to candidates more than makes up for the violation of their
constitutional right. I disagree.

Ad Ban Not
Limited in Duration

The ad ban is constitutional because, according to the majority, it is limited in duration for
the reason that it is enforced only during the election period. In my humble view and with all
due respect, this is both erroneous and illogical. A political advertisement is relevant only
during the campaign period — not before and not after. As petitioners put it, a ban on
mountain-skiing during the winter season cannot be said to be limited in duration, just
because it is enforced during winter. After all, skiing is indulged in only when the mountains
slopes are covered with snow. To add a further parallel, a ban against the planting of rice
during the rainy season is not limited simply because it covers only that season. After all,
nobody plants rice during summer when the soil is parched. In the same manner, campaign
ads are not resorted to except during the campaign period. And their prohibition does not
become any less odious and less comprehensive just because the proscription applies only
during the election season. Obviously, candidates need to advertise their qualifications and
platforms only during such period. Properly understood, therefore, the prohibition is not
limited in duration but is in fact and in truth total, complete and exhaustive.

Ad Ban Neither
Limited in Scope

The majority also claims that the prohibition is reasonable because it is limited in scope; that
is, it refers only to the purchase, sale or donation of print space and air time for "campaign or
other political purposes," and does not restrict news reporting or commentaries by editors,
columnists, reporters, and broadcasters. But the issue here is not the freedom of media
professionals. 17 The issue is the freedom of expression of candidates. That the freedom of the
press is respected by the law and by the Comelec is not a reason to trample upon the candidates'
constitutional right to free speech and the people's right to information. In this light, the majority's
contention is a clear case of non sequitur. Media ads do not partake of the "real substantive evil"
that the state has a right to prevent 18 and that justifies the curtailment of the people's cardinal
right to choose their means of expression and of access to information.

Besides, what constitutes "campaign or other political purposes"? Neither RA 6646 nor the
majority provides an explanation. If candidates buy 30 column-inches of newspaper space or
one hour of prime radio/TV, time everyday, and if they retrain professional journalists to use
such space/time to defend them from attacks and to promote their platforms of government,
should such purchase be covered by the ad ban, or should it be allowed as an exercise of the
freedom of journalists to express their views? Even more insidiously, should regular
columnists' daily defense of their chosen candidates and daily promotion of their platforms
of government constitute donated space for "campaign and other political purposes"? 19

Ad Ban Not Compensated for or


Justified by Free "Comelec Time"

Finally, the majority opines that the grant of free Comelec media time and space to
candidates more than makes up for the abridgment of the latter's right to buy political
ads. 20 With due respect, I believe this is hollow and shallow.
In its Compliance dated March 13, 1998, Comelec tell us that under its Resolution No. 3015, it
gave due course to eleven candidates for president, 21 nine for vice president, 22 and forty for
senator. 23 It is claimed however that, all in all, there are really about 100,000 candidates running
for about 17,000 national and local positions in the coming elections, from whom a voter is
expected to choose at least 30 24 to vote for. With so many candidates, how can the ordinary,
sometimes nonchalant, voter ever get to know each of the political hopefuls from whom he will
make an intelligent selection? In the crucial choice for president alone, how can ordinary citizens
intelligently and sufficiently assess each of the 11 candidates in order to make a sensible choice
for a leader upon whom to entrust the momentous responsibility of carving the country's path in
the next millennium?

The Comelec answers these questions with Resolution No. 2983-A, promulgated on March 3,
1998, in which it asks "every radio broadcasting and television station operating under
franchise [to] grant the Commission, upon payment of just compensation, at least thirty (30)
minutes of prime time daily, to be known as 'Comelec time' effective February 10, 1998 for
candidates for President, Vice President and Senators, and effective March 27, 1998 for
candidates for local elective offices, until May 9, 1998," to be allocated "by lottery" among
candidates requesting its use. But Comelec, in the same Compliance, informed the Court that
"it is not procuring 'Comelec space' (in any newspaper) by virtue of the effects of the
decision of this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec,
244 SCRA 272." 25

In sum, the Comelec intends to secure 30 minutes of "Comelec time" from every radio and
broadcasting station to be allocated equally to all candidates. The Comelec does not state
exactly how it intends to allocate — except "by lottery" — these 30 minutes per station to the
17,000 candidates, considering that these stations do not have the same reach, audience and
penetration. The poll body does not say exactly how many stations are involved, what budget
allocation, if any, it has for the purpose, 26 when each candidate will be allowed to speak and for
how long, how the Comelec intends to cover the 77 provinces, 68 cities and 42,000 barangays
nationwide, and many other details. Moreover, while the Comelec smugly speaks of free Comelec
time being effective on "February 10, 1998" for national candidates, Resolution 2983-A itself was
promulgated only on March 3, 1998.

Up to this writing, I have yet to hear of any major candidate using this so-called free Comelec
broadcast time. In fact, during the oral argument of this case on March 5, 1998, Comelec
Chairman Bernardo P. Pardo frankly admitted that no candidate had applied for an allocation
of Comelec time. Not even petitioners. This is the best testament to the utter inutility and
ineffectivity of Comelec time. Indeed, it cannot be a substitute, much less a viable alternative,
to freely chosen but paid for media ads. It cannot compensate for the violation of the
candidates' right to free speech and media access, or for the electorate's right to information.

If the real objective is to level the playing field for rich and poor candidates, there must be, as
there already are, a cap on election expenses and a shortening of the campaign period. The
incapability of the Comelec to effectively monitor and strictly implement such expense and
time limitations should not take its toll upon constitutionally enshrined liberties of the people,
including the candidates. To prohibit access to mass media, except only through Comelec
time — which has been indubitably shorn to be sorely insubstantial, insignificant and inutile
— is not, and is far from being, a solution to the problems faced by poor candidates. The
simple remedy is to lift the media ban.

Epilogue
The ad ban is a blatant violation of the candidates' constitutional right to free speech 27 and
the people's right to information. 28 Being the last refuge of the people and the guardian of the
Constitution, this Court should then, with alacrity, view the ban with suspicion, if not with outright
rejection. 29 To repeat, the alleged limitations are in reality nonexistent; and the "pro-poor"
justification, without logic.

To say that the prohibition levels the playing field for the rich and the poor is to indulge in a
theoretical assumption totally devoid of factual basis. On the contrary, media advertising may
be — depending on a contender's propaganda strategy — the cheapest, most practical and
most effective campaign medium, especially for national candidates. By completely denying
this medium to both the rich and the poor, this Court has not leveled the playing field. It has
effectively abolished it! Far from equalizing campaign opportunities, the ban on media
advertising actually favors the rich (and the popular) who can afford the more expensive and
burdensome forms of propaganda, against the poor (and the unknown) who cannot.

The allegation that the prohibition is reasonable because it is limited in duration and scope is
itself most unreasonable, bereft as it is of logic and basis. Even more shallow is the argument
that the Comelec-given media time and space compensate for such abridgment. In fact, the
Comelec is not even procuring any newspaper space. In any event, the fact that not even the
poorest candidates have applied for available opportunities is the best testament to its
dubiousness. That petitioners who are seasoned political leaders prefer to pay for their own
media ads rather than to avail themselves of the Comelec freebies refutes the majority's
thesis of compensation. Indeed, the free things in life are not always the best. 30 They mat just
be a bureaucratic waste of resources.

Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad
ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges
reverence for the stability of judicial doctrines. I submit, however, that more important than
consistency and stability are the verity, integrity and correctness of jurisprudence. As Dean
Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct
itself and move in cadence with the march of the electronic age. Error and illogic should not
be perpetuated. After all, the Supreme Court, in many cases, 31 has deviated from stare
decisis and reversed previous doctrines and decisions. It should do no less in the present case.

Elections can he free, honest and credible not only because of the absence of the three
execrable "G's" or "guns, goons and gold." Beyond this, the integrity and effectivity of
electoral democracy depend upon the availability of information and education touching on
three good "P's" — principles, platforms and programs of the candidates. Indeed, an
intelligent vote presupposes a well-informed voter. If elections must be rid of patronage,
personalities and popularity as the main criteria of the people's choice, we must allow
candidates every opportunity to educate the voters. And corollarily, the people must be
accorded every access to such information without much effort and expense on their part.

With all due respect, I submit that the ad ban is regressive, repressive and deceptive. It has
no place in our constitutional democracy.

WHEREFORE, I vote to GRANT the petition and to CONDEMN Section 11(b) of RA 6646 as
UNCONSTITUTIONAL and VOID.

Quisumbing and Purisima, JJ., dissent.

Footnotes
1 As petitioners filed their petition before they filed certificates of candidacy,
they assert an interest in this suit "as taxpayers and registered voters" and "as
prospective candidates." Rollo, p. 6.

2 207 SCRA 1 (1992).

3 Rollo, p. 3.

4 Art. III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression,


or of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.

A related provision states:

Sec. 7. The right of the people to information on matters of public concern


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

5 Rollo, p. 17.

6 Memorandum for Petitioners, p. 21.

7 Thus, this Court held in NPC v. COMELEC:

My learned brother in the Court Cruz, J. remonstrates, however, that "[t]he


financial disparity among the candidates is a fact of life that cannot be
corrected by legislation except only by the limitation of their respective
expenses to a common maximum. The flaw in the prohibition under challenge
is that while the rich candidate is barred from buying mass media coverage, it
nevertheless allows him to spend his funds on other campaign activities also
accessible to his straitened rival." True enough Section 11(b) does not, by
itself or in conjunction with Sections 90 and 92 of the Omnibus Election Code,
place political candidates on complete and perfect equality inter se without
regard to their financial affluence or lack thereof. But a regulatory measure that
is less than perfectly comprehensive or which does to completely obliterate
the evil sought to be remedied, is not for that reason alone constitutionally
infirm. The Constitution does not, as it cannot, exact perfection in government
regulation. All it requires, in accepted doctrine, is that the regulatory measure
under challenge bear a reasonable nexus with the constitutionally sanctioned
objective. That the supervision or regulation of communication and
information media is not, in itself, a forbidden modality is made clear by the
Constitution itself in Article IX(C)(4), 207 SCRA at 14.

8 Answer-in-Intervention, p. 2.

9 Philippine Trust Co. v. Mitchell, 50 Phil. 30 (1972); Kilosbayan v. Morato, 246


SCRA 540 (1995)
10 207 SCRA, 13-14 (1992).

11 35 SCRA 285 (1970).

12 207 SCRA 712 (1992).

13 Id. at 720.

14 Id., at 722.

15 36 SCRA 228 (1970).

16 Sanidad v. COMELEC, 181 SCRA 529 (1990).

17 In Philippine Press Institute v. COMELEC, 244 SCRA 272 (1995), we held that
for space acquired in newspapers the COMELEC must pay just compensation.
Whether there is a similar duty to compensate for acquiring at time from
broadcast media is the question raised in Telecommunications and Broadcast
Attorneys of the Philippines v. COMELEC, G.R. No. 132922, now pending
before this Court.

18 447 U.S. 74, 64 L.Ed2d 741 (1980).

19 See, e.g. J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v.
Villegas, 31 SCRA 730 (1970); Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v.
Fugoso, 80 Phil. 71 (1948).

20 27 SCRA 835 (1969).

21 Res., G.R. No. 73551, Feb. 11, 1988.

22 Memorandum for Petitioners, p. 10.

23 Id., p. 11.

24 207 SCRA at 7 (emphasis by petitioners).

25 Ibid.

26 424 U.S. I, 48-49, 46 L.Ed. 659, 704-705 (1976). The Solicitor General also
quotes this statement and says it is "highly persuasive in this jurisdiction."
Memorandum of the OSG, p. 27.

27 R.A. No. 7166, §13; OEC, §100.

28 See Macias v. COMELEC, 113 Phil. 1 (1961).

29 I RECORD OF THE 1986 CONSTITUTIONAL COMMISSION 624, Session of


July 16, 1986.
30 Gonzales v. COMELEC, 27 SCRA 835 (1969).

31 Compliance, p. 4.

32 The bills are S. Nos. 178, 595, 856, 1177 and 1224, which were consolidated
into S. No. 2104.

33 For helpful discussion of the distinction between content-based and


content-neutral regulations, see generally GEOFFREY R. STONE, LOUIS M.
SEIDMAN, CASS R. SUNSTEIN, AND MARK V. TUSHNET, CONSTITUTIONAL
LAW 1086-1087, 1172-1183, 1323-1334 (1996); GERALD GUNTHER AND
KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 1203-1212 (1997); Goeffrey
R. Stone, Content-Neutral Restrictions, 54 UNIV. OF CHI. LAW REV. 46 (1987).

34 207 SCRA 712 (1992).

35 Id., at 718 (internal quotations omitted).

36 391 U.S. 367, 20 L.Ed.2d 672 (1968).

37 181 SCRA 529 (1990).

38 See, e.g., Primicias v. Fugoso, 80 Phil. 71 (1948).

39 PAUL A. FREUND, ON UNDERSTANDING THE SUPREME COURT 25-26


(1949).

40 4 RECORD OF THE HOUSE OF REPRESENTATIVE 261 (Dec. 14, 1987); 1


RECORD OF THE SENATE 1644 (Oct. 19, 1987).

41 THE IRONY OF FREE SPEECH 83 (1996).

PUNO, J., separate concurring;

1 424 US 1 (1976); see also First National Bank of Boston v. Bellotti, 435 US 765
(1978).

2 Id. at pp. 48-49.

3 Wright, Money and the Pollution of Politics: Is the First Amendment an


Obstacle to Political Equality, 82 Col. L. Rev. No. 4 (May 1982); Abrogast,
Political Campaign Advertising and the First Amendment: A Structural-
Functional Analysis of Proposed Reform, 23 Akron L. Rev. 2091 (1989); Blum,
The Divisible First Amendment: A Critical Functionalist Approach to Freedom
of Speech and Electoral Campaign Spending, 58 N.Y.U.L. Rev. 1273 (1983).

4 Wright, op cit, p. 609.

5 494 US 652 (1990).


6 Concurring Opinion in NPC v. COMELEC, 207 SCRA 19 (1992).

7 Id. at p. 18.

8 Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev.
1641 (1967).

ROMERO, J., dissenting;

1 "Self-Reliance," Emerson's Essays, Emerson, Ralph Waldo, Books, Inc., N.Y.

2 Article III. Sec. 4:

No law shall be passed abridging the freedom of speech, of expression, or of


the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances.

3 Olaguer v. Military Commission No. 34, 150 SCRA 144 (1987).

4 Olaguer v. Military Commission No. 34, 150 SCRA 145 citing Phil. Trust Co.
and Smith Bell and Co. v. Mitchell, 50 Phil. 30 (1933) cited with approval in
Koppel (Phils.), Inc. v. Yatco, 77 Phil. 496 (1946). See Also Tan Chong v.
Secretary of Labor, 79 Phil. 249 (1947).

5 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A


COMMENTARY, Vol. 1, 1987 ed., p. 34.

6 CRUZ, CONSTITUTIONAL LAW, 1993 ed., p. 43.

7 Gerona v. Secretary of Education, 106 Phil. 2 (1959).

8 219 SCRA 256 (1993).

9 46 Phil. 440 (1924).

10 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A


COMMENTARY, Vol. II, 1988 ed., p. 40.

11 70 Phil. 340 (1940).

12 83 Phil. 17 (1949).

13 Bernas, The Constitution of the Republic of the Philippines: A Commentary,


Vol. I. p. 142,citing New York Times vs. United States (403 U.S. 713).

14 259 SCRA 529 (1996).

15 59 Phil. 30 (1933).
16 One president, one vice-president, twelve senators, one congressman, one
party-list representative, one governor, one vice-governor, an estimated five
Sangguniang Panlalawigan members, one mayor, one vice-mayor, and an
estimated five SangguniangBayan/Panglungsod members.

17 The study was conducted by six senior students of the UP College of Mass
Communications, covering Manila Bulletin, Philippine Daily Inquirer, Philippine
Times Journal, People's Journal and Tempo — Report of the COMELEC to the
President and Congress of the Republic of the Philippines on the Conduct of
the Synchronized National and Local Elections of May 11, 1992, Vol. I, p. 56.

18 Philippine Blooming Mills Employees Organization vs. Philippine Blooming


Mills, Inc., 50 SCRA 189 (1973).

19 16A Am Jur 2d. p. 341.

20 Blo Umpar Adiong vs. Comelec, 207 SCRA 712 (1992).

21 Education and Information Department, COMELEC.

22 In 1992, there were 17,282 contested positions, while the total number of
candidates reached 87,770 — Report of the COMELEC to the President and
Congress of the Republic of the Philippines on the Conduct of the
Synchronized National and Local Elections of May 11, 1992, Vol. I, p. 2.

23 Sec. 2. Every radio broadcasting and television station operating under


franchise shall grant the Commission, free of charge, at least thirty (30)
minutes of prime time daily, to be known as "COMELEC Time." effective
February 10, 1998 for candidates for President, Vice-President and Senators,
and March 27 for candidates for local elective offices, until May 9, 1998.

24 Sec. 3. Uses of "COMELEC Time" — . . . "COMELEC Time" shall also be


used by the Commission in disseminating vital election information.

25 BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 ed., p.


344.

26 Section 3, R.A. 7941.

27 As of February 9, 1998, 93 parties/organizations have filed certificates of


candidacy under the party-list system — Law Division, COMELEC.

28 Mutuc v. Comelec, 36 SCRA 228 (1970): Victoriano v. Elizalde Rope Workers


Union, 59 SCRA 54 (1974); Gonzales v. Comelec, 27 SCRA 835 (1969).

29 See concurring opinion of Mr. Justice Brandeis in Whitney v. California, 274


US 357 (1926).

30 Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969).

31 Emerson, Thomas. The System of Freedom of Expression, p. 7 (1969).


32 Channels 2, 4, 5, 7, 9, 11, 13, 23, 27, 29, 31, 39.

33 In Columbia Broadcasting v. Democratic National Committee (412 US 94)


the court held that broadcasters may validly refuse to accept paid editorial
advertisements from "responsible entities" wishing to present their views on
public issues like, in this instance, the Business Executives' Move for Vietnam
Peace, expressing their views on the Vietnam conflict. See however CBS v. Fox
(453 US 367 [1981]) where the US Supreme Court held that the
Communications Act of 1934 grants an affirmative, enforceable and limited
right of reasonable access to broadcast media for legally qualified individual
candidates seeking federal elective office. The Court quoted the observation of
the Federal Communications Commission that "An arbitrary blanket ban on the
use of the candidate of a particular class or length of time in a particular period
cannot be considered reasonable. A Federal candidate's decisions as to the
best method of pursuing his or her media campaign should be honored as
much as possible under the "reasonable limits" imposed by the licensee.

In Public Utilities v. Pollak (343 US 451 [1952]) which was cited in Columbia,
the US Supreme Court rejected the claim that the broadcasting of special
programs — in this case 90% music, 5% news and 5% commercial advertising
— in public transit cars violated the right of the passengers who did not wish
to listen to the programs.

In Kovacs v. Cooper (336 US 77 [1949]) the Court upheld an ordinance


forbidding the use on public streets of sound trucks which emit "loud and
raucous" noises. Justice Black in his dissent however cited the case of Saia v.
New York (334 US 558 [1948]) where an ordinance banning the use of sound
amplification devices except for dissemination of news items and matters of
public concern — provided the police chiefs permission was obtained, was
struck down as unconstitutional. The court in the Saia case held that."
Loudspeakers are today indispensable instruments of effective public speech.
The sound truck has become an accepted method of political campaign."
Adhering to his dissent in Saia, Justice Frankfurter concurred in Kovacs
saying. "So long as the legislature does not prescribe what may be noisily
expressed and what may not be, it is not for us to supervise the limits the
legislature may impose in safeguarding the steadily narrowing opportunities
for serenity and reflection."

34 The case of Lehman v. Shaker Heights (418 US 298 [1974]) is not particularly
in point in the case at bar where a complete prohibition is imposed on the use
of newspapers, radio or television, other mass media, or any person making
use of the mass media to sell or give free of charge print space or air time for
campaign and political purposes except to the Commission. In the case of
Lehman, a city operating a public transit system sold commercial and public
service advertising space for cards on its vehicles, but permitted no "political"
or "public issue" advertising. When petitioner, a candidate for the Office of
State Representative to the Ohio General Assembly failed in his effort to have
advertising promote his candidacy accepted, he sought declaratory relief in
the State courts. The US Supreme Court held that the city consciously has
limited access to its transit system to minimize the chances of abuse, the
appearance of favoritism and the risk of imposing upon a captive audience.
35 Illinois Board of Directors v. Socialist Workers, 440 US 173 (1979).

36 Eu v. San Francisco Democratic Comm., 489 US 214 (1989).

37 Buckley v. Valeo, 424 US 1 (1976) citing New York Times v. Sullivan, 84 S Ct.
710, quoting Associated Press v. United States, 326 US 1 (1945) and Roth vs.
United States at 484.

38 Thornhill v. State of Alabama, 310 US 88 (1940).

39 Section 100 of BP 881, otherwise known as the Omnibus Election Code,


states: "No candidate shall spend for his election campaign on aggregate
amount exceeding one peso and fifty centavos for every voter currently
registered in the constituency where he filed his candidacy. Provided, that the
expenses herein referred to shall include those incurred or caused to be
incurred by the candidate, whether in cash or in kind, including the use, rental
or hire of land, water or aircraft, equipment facilities, apparatus and
paraphernalia used in the campaign: Provided, further That where the land,
water or aircraft, equipment, facilities, apparatus and paraphernalia is owned
by the candidate, his contributor or his supporter, the Commission is hereby
empowered to assess the amount commensurate with the expenses for the
use thereof based on the prevailing rates in the locality and shall be included
in the total expenses incurred by the candidate. See also related Sections 94-
112.

40 Cooley, Thomas. I Constitutional Limitations, 8th Ed (1927, p. 346).

41 Gonzales v. Comelec, supra.

42 84 Phil 847 (1949).

43 I Record 632, 662-663.

44 424 US 1 [1976].

45 See footnote 39.

46 Supra at 19.

47 453 US 182 [1981].

48 470 US 480 [1985].

49 475 US 1063 [1986].

50 494 US 652 [1990].

51 Supra.
52 Thomas v. Collins, 323 U.S. 516 (1945), as cited in the dissenting opinion of
Justice Fernando in Gonzales v. Comelec at p. 885 and in the case of Blo
Umpar Adiong v. Comelec, 207 SCRA 712 [1992].

53 Quincy Cable TV Inc. v. FCC, 786 F2d 1434 [1985].

54 Edenfield v. Fane, 507 US [1993].

55 Emerson, Thomas. The System of Freedom of Expression, [1967] pp. 10-11.

56 The Philippines a Century Hence, p. 62 et seq.

57 United States vs. Bustos, 37 Phil. 731 (1918). See Mabini, La Revolucion
Filipina.

58 GUEVARA, THE LAWS OF THE FIRST PHILIPPINE REPUBLIC (THE LAWS


OF MALOLOS) 1898-1899, 1972, p. 107.

PANGANIBAN, J., dissenting;

1 Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms


of election propaganda prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful:

xxx xxx xxx

b) for any newspaper, radio broadcasting or television station, other mass


media, or any person making use of the mass media to sell or give free of
charge print space or air time for campaign or other political purposes except
to the Commission as provided under Sections 90 and 92 of Batas Pambansa
Blg. 881. Any mass media columnist, commentator, announcer who is a
candidate for any elective public office shall take a leave of absence from his
work as such during the campaign period.

2 207 SCRA 1, March 5, 1992, per Feliciano, J.

3 Ibid., pp. 28-30, The following are excerpts:

Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the
voters ignorant of who the candidates are and what they stand for.

The implementation of Section 11(b) will result in gross inequality. A cabinet


member, an incumbent official, a movie star, a basketball player, or a
conspicuous clown enjoys an unfair advantage over a candidate many times
better qualified but lesser known.

. . . We owe it to the masses to open all forms of communication to them


during this limited campaign period. A candidate to whom columnists and
radio-television commentators owe past favors or who share their personal
biases and convictions will get an undue amount of publicity. Those who incur
the ire of opinion makers cannot counteract negative reporting by buying his
own newspapers space or airtime for the airing of his refutations.

Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly
reprehensible because it is imposed during the limited period of the election
campaign when information is most needed. . . .

4 Ibid., pp. 31-43. I quote significant, enlightening portions as follows:

The citizens can articulate his views, for whatever they may be worth, through
the many methods by which ideas are communicated from mind to mind. Thus,
he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking
fails." . . . The individual can convey his message in a poem or a novel or a
tract or in a public speech or through a moving picture or a stage play. In such
diverse ways may he be heard. There is of course no guaranty that he will be
heeded, for acceptability will depend on the quality of his thoughts and of his
person, as well as the mood and motivation of his audience. But whatever form
he employs, he is entitled to the protection of the Constitution against any
attempt to muzzle his thoughts.

It is for the purpose of properly informing the electorate of the credentials and
platforms of the candidates that they are allowed to campaign during the
election period. . . .

It is curious, however, that such allowable campaign activities do not include


the use of the mass media because of the prohibition in Section 11(b) of Rep.
Act No. 6646. . . .

The lawful objective of Section 11(b) may be readily conceded. The announced
purpose of the law is to prevent disparity between the rich and the poor
candidates by denying both of them access to the mass media and thus
preventing the former from enjoying and undue advantage over the latter.
There is no question that this is a laudable goal. Equality among the
candidates in this regard should be assiduously pursued by the government if
the aspirant with limited resources is to have any chance at all against an
opulent opponent who will not hesitate to use his wealth to make up for his
lack of competence.

To pursue a lawful objective, only a lawful method may be employed even if it


may not be the best among the suggested options. In my own view, the
method here applied falls far short of the constitutional criterion. I believe that
the necessary reasonable link between the means employed and the purpose
sought to be achieved has not been proved and that the method employed is
unduly oppressive.

But the most important objection to Section 11(b) is that it constitutes prior
restraint on the dissemination of ideas. In a word, it is censorship. It is that
officious functionary of the repressive government who tells the citizen that he
may speak only if allowed to do so, and no more and no less that what he is
permitted to say on pain of punishment should he be so rash as to disobey.
I remind the Court of the doctrine announced in Bantam Books v. Sullivan that
"any system of prior restraint of expression comes to this Court bearing a
heavy presumption against its validity." That presumption has not been refuted
in the cases sub judice. On the contrary, the challenged provision appears
quite clearly to be invalid on its face because of its undisguised attempt at
censorship. The feeble effort to justify it in the name of social justice and clean
elections cannot prevail over the self-evidence fact that what we have here is
an illegal intent to suppress free speech by denying access to the mass media
as the most convenient instruments for the molding of public opinion. And it
does not matter that the use of these facilities may involve financial
transactions, for the element of the commercial does not remove them from
the protection of the Constitution.

I submit that all the channels of communication should be kept open to insure
the widest dissemination of information learning on the forthcoming elections.
An uniformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may
exercise their suffrages wisely, it is important that they be apprised of the
election issues, including the credentials, if any, of the various aspirants for
public office. This is especially necessary now in view of the dismaying
number of mediocrities who, by an incredible aberration of ego, are relying on
their money, or their tinsel popularity, or their private armies, to give them the
plume of victory.

For violating the "liberty to know, to utter and to argue freely according to
conscience, above all liberties," the challenged law must be struck down. For
blandly sustaining it instead, the majority has inflicted a deep cut on the
Constitution that will ruthlessly bleed it white, and with it this most cherished
of our freedoms.

5 Ibid., pp. 43-44, where he said in part:

The freedom to advertise one's political candidacy in the various forms of


media is clearly a significant part of our freedom of expression and of our right
of access to information. Freedom of expression in turn includes among other
things, freedom of speech and freedom of the press. Restrict these freedoms
without rhyme or reason, and you violate the most valuable feature of the
democratic way of life.

The majority says that the purpose of the political advertisement provision is
to prevent those who have much money from completely overwhelming those
who have little. This is gross error because should the campaign for votes be
carried out in other fora (for example, rallies and meetings) the rich candidate
can always be at a great advantage over his less fortunate opponent. And so
the disparity feared will likewise appear in campaigns other than through
media. . . .

6 Like the Philippine Daily Inquirer, the Manila Bulletin and the Philippine Star.

7 Like ABS-CBN Channel 2 or GMA Channel 7.

8 Petition in Intervention, p. 28.


9 Sec. 100, BP Blg. 881, as amended by Sec. 13, RA 7166, which provides:

Sec 100 Limitations upon expenses of candidates. — Authorized Expenses of


Candidates and Political Parties. — The aggregate amount that a candidate or
registered political party may spend for election campaign shall be as follows:

(a) For candidates — Ten pesos (P10.00) for President and Vice-
President, and for other candidates, Three pesos (P3.00) for every voter
currently registered in the constituency where he filed his certificate of
candidacy , That a candidate without any political party may be allowed
to spend Five pesos (P5.00) for every such voter; and

Provided

(b) For political parties — Five pesos (P5.00) for every voter currently
registered in the constituency or constituencies where it has official
candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash


or in kind to any candidates or political party or coalition of parties for
campaign purposes, duly reported to the Commission, shall not be subject to
the payment of any gift tax.

10 This is the claimed circulation of the three major broadsheets — Philippine


Daily Inquirer, Manila Bulletin and Philippine Star.

11 This is the present cost actually paid by a major broadsheet for every page
of printing, including the paper and the ink used. Commercial printing presses
actually charge 3 to 4 times this amount for posters smaller than a one page
newspaper ad.

12 The cost is P3 for the first 50 grams in bulk mailing, method which would
entail add-on costs for the materials to reach the individual voters. Hence, to
factor out these adds-on costs while approximating the reach of a newspaper,
the cost of mailing by piece was computed instead.

13 Sec. 3, BP. Blg. 881, as amended by Sec. 5, RA 7166.

14 The Court, in Eastern Broadcasting Corp. vs. Dans Jr., 137 SCRA 628, 635-
636, July 19, 1985, through Justice Hugo E. Gutierrez, Jr., described the
pervasive effect of broadcast media in this wise:

The broadcast media have also established a uniquely pervasive presence in


the lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here there are low income masses who find
the cost of books, newspapers, and magazines beyond their humble means
Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set
is also becoming universal message may be simultaneously received by a
national or regional audience of listeners including the indifferent or unwilling
who happen to be within the reach of a blaring radio or television set. The
materials broadcast over the airwaves reach every of every age persons of
varying susceptibilities to persuasion persons of different I.Q.s and mental
capabilities, persons whose reactions to inflammatory or offensive speech
would be difficult to monitor or predict. The impact of the vibrant speech is
forceful and immediate . . .

15 90 days for candidates for president, vice president and senator; and 45
days for the other elective positions (Sec. 3, BP Blg. 881, as amended by Sec.
5, RA 7166).

16 In National Press Club, supra, at 12-13, the Court gives the argument:

It seems appropriate here to recall what Justice Laurel taught in Angara v.


Electoral Commission [63 Phil 139, 177 (1936)] that the possibility of abuse is
no argument against the concession of the power or authority involved, for
there is no power or authority in human society that is not susceptible of being
abused.

16a In his column in the Manila Standard on March 30, 1998 entitled "A survey
about political ads," Mahar Mangahas, president of the Social Weather
Stations, explains why "it pays of advertise" political candidacies, "judging
from the results of the Social Weather Stations survey of Feb. 21-27, 1998."
Interestingly, the SWS survey showed that the 1998 political ads best recalled
by the public were those of the two leading candidates — Joseph Estrada
(55%) and Alfredo Lim (54%) — followed by Jose de Venecia (37%), Lito
Osmeña (35%), Renato de Villa (19%), Raul Roco (11%), Miriam Defensor
Santiago (9%), Imelda Marcos (3%), and Juan Ponce Enrile (2%). Interestingly
also, the topnotchers in the ad survey cannot be termed "rich" nor the bottom
dwellers, "poor," thereby reinforcing my thesis that the effectiveness of
political ads is not dependent on financial fortunes. Rather, political ads are
complementary to the overall political strategy of each candidate.

17 This specific issue has been resolved in Sanidad v. Comelec, 181 SCRA
529, January 29, 1990, per Medialdea, J., where the Court ruled:

However neither Article IX-C of the Constitution [Comelecs power to supervise


and regulate the operation of public utilities and the mass media during the
election period] nor Sec 11 (b) and par of R A 6646 can be construed to mean
that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during
the plebiscite periods. Media practitioners are neither the franchise holders nor
the candidates. . . . Therefore Section 19 of Comelec Resolution No. 2167
[prohibiting columnists commentators or announcers to use their column
radio or TV time to campaign for or against plebiscite issues] has no statutory
basis.

xxx xxx xxx

Anent respondent Comelecs argument that Section 19 of Comelec Resolution


No 2167 does not absolutely bar petitioner-columnist from expressing his
views and/or from campaigning for or against the organic act because he may
do so through the Comelec space and/or Comelec radio/television time, the
same is not meritorious. While the limitation does not absolutely bar
petitioners freedom of expression, it is still a restriction on his choice of the
forum where he may express his view. No reason was advanced by respondent
to justify such abridgment. We hold that this form of regulation is tantamount
to a restriction of petitioners freedom of expression for no justifiable reason.
[Emphasis in the original]

18 Using the "clear and present danger test" as enunciated in Gonzales vs.
Comelec, 27 SCRA 835, 877, April 18, 1969, per Fernando, J., citing Sohenk v.
United States, 249 US 47, 52, 63 L.ed. 470, 473-474 (1919); Whitney v.
California, 247 US 357, 373, 71 L.ed. 192, 202-203 (1927); Dennis v. United
States, 341 US 494, 510, 95 L. ed., 1137, 1153 (1950); and several other
cases. See also, Ponencias vs. Fugoso, 80 Phil 71, 87-88, January 27, 1948, per
Feria,J.; Adiong vs. Comelec, 207 SCRA 712, 715, March 31, 1992, per Gutierrez
Jr., J.; Eastern Broadcasting Corp. vs. Dans Jr., supra.

19 "PPI appeals to media companies not to sell space, air time to pols,"
Philippine Daily Inquirer, March 5, 1998. The following are excerpts:

The appeal was made as the PPI expressed "grave concern and alarm over the
overnight proliferation of "fly-by-night" newspapers who take advantage of the
political campaign season for racketeering.

"The institutes is dismayed by the reported abdication by a number of media


owners and editors of their journalistic responsibilities by selling their editorial
pages and air time to political candidates." PPI executive director Ermin Garcia
said in a statement.

See also, "Ad ban worsens corruption in media," Philippine Daily Inquirer,
March 31, 1998, which reads in part:

A media officer of a candidate revealed that in one national daily the going
price for a page one photo is P5,000. The reporter who acts as broker gets
P1,000, the editor who puts it out gets P4,000. That is cheaper than the price of
an equivalent column space for advertisement in the inside pages.

A presidential candidates photo on the front page fetches P15,000 while for a
senatorial candidate it is P10,000.

A banner story costs P25,000. A front page above the fold costs P20,000. A
small press release costs P5,000.

20 In contrast, this was what the Court said in unanimity in Sanidad, supra:

Plebiscite issues are matters of public concern and importance The people's
right to be informed and to be able to freely and intelligently make a decision
would be better served by access to an unabridged discussion of the issues,
including the forum. The people affected by the issues presented in a
plebiscite should not be unduly burdened by restrictions on the forum where
the right to expression may be exercised Comelec spaces and Comelec radio
time may provide a forum for expression but they do not guarantee full
dissemination of information to the public concerned because they are limited
to either specific portions in newspapers or to specific radio or television
times. (Emphasis ours)

21 1. Jose C. De Venecia, Jr. — LAKAS-NUCD UDMP

2. Renato S. De Villa — Partido para sa Demokratikong


Reporma/Lapiang Manggagawa Coalition

3. Santiago F. Dumlao, Jr. — Kilusan para sa Pambansang


Pagpapanibago

4. Juan Ponce Enrile — Independent (LP)

5. Joseph E. Estrada — Partido ng Masang Pilipino —LAMMP

6. Alfredo S. Lim — Liberal Party

7. Imelda R. Marcos — Kilusan Bagong Lipunan

8. Manuel L. Morato — Partido Bansang Marangal

9. Emilio R. Osmeña — Progressive Movement for Devolution of


Initiative Political Party of Central Visayas

10. Raul S. Roco — Aksyon Demokratiko

11. Miriam Defensor Santiago — People's Reform Party

22 1. Edgardo J. Angara — LDP/LAMMP Coalition

2. Gloria Macapagal-Arroyo — LAKAS-NUCD UMDP

3. Oscar M. Orbos — PDR — LM

4. Sergio Osmeña III — Liberal Party

5. Reynaldo R. Pacheco — KPP

6. Camilo L. Sabio — Partido Bansang Marangal

7. Irene M. Santiago — Aksyong Demokratiko

8. Ismael D. Sueño — PROMDI

9. Francisco S. Tatad — People's Reform Party

23 1. Lisandro C. Abadia — LAKAS-NUCD UMDP


2. Rolando R. Andaya — LAKAS-NUCD UMDP

3. Teresa Aquino-Oreta — LDP/LAMMP Coalition

4. Luduvico D. Badoy — KPP

5. Ramon S. Bagatsing, Jr. — LDP/LAMMP Coalition

6. Robert Z. Barbers — LAKAS-NUCD UMDP

7. Rodolfo G. Biazon — LDP/LAMMP Coalition

8. Eduardo D. Bondoc — KPP

9. David M. Castro — KPP

10. Renato L. Cayetano — LAKAS-NUCD UMDP

11. Raul A. Daza — LIBERAL PARTY

12. Roberto F. De Ocampo — LAKAS-NUCD UMDP

13. Renato B. Garcia — KPP

14. Adolfo R. Geronimo — PDR-LM Coalition

15. Ricardo T. Gloria — LAKAS-NUCD UMDP

16. Teofisto M. Guingona — LAKAS-NUCD UMDP

17. Abraham S. Iribani — PDR/LM Coalition

18. Robert S. Jaworski — LAMMP

19. Edcel C. Lagman — LAMMP

20. Reynante M. Langit — PDR/LM Coalition

21. Loren B. Legarda-Leviste — LAKAS-NUCD UMDP

22. Oliver O. Lozano — INDEPENDENT

23. Fred Henry V. Marallag — KPP

24. Blas F. Ople — PMP-LAMMP Coalition

25. John Reinner Osmeña — NPC/LAMMP

26. Roberto M. Pagdanganan — LAKAS-NUCD UMDP


27. Charito B. Plaza — LIBERAL PARTY

28. Hernando B. Perez — LAKAS-NUCD UMDP

29. Aquilino Q. Pimentel — LAMMP (PDP/LABAN)

30. Santanina C.T. Rasul — LAKAS-NUCD UMDP

31. Ramon B. Revilla — LAKAS-NUCD UMDP

32. Miguel Luis R. Romero — LAMMP

33. Roberto S. Sebastian — PDR-LM Coalition

34. Roy B. Señeres — PDR-LM Coalition

35. Vicente C. Sotto III — LDP/LAMMP Coalition

36. Hadja Putri Zorayda — PDR/LM Coalition

A. Tamano

37. Rube D. Torres — LAMMP

38. Jose M. Villegas, Jr. — LM (Workers Party)/PDR

39. Freddie N. Webb — LDP/LAMMP

40. Haydee B. Yorac — Independent

24 1 each for president, vice-president, congressman, governor, vice-governor,


mayor and vice-mayor; 12 for senator; at least 5 for Sangguniang Panlalawigan
members; also at least 5 for Sangguniang Bayan/Panlungsod members; and 1
for party list representative.

25 Compliance dated March 13, 1998, p. 4.

26 The Comelec has not even paid the per diem and allowances of the public
school teachers who served during the last barangay elections. How can it
expect to pay for the Comelec TV and radio time? (Memorandum of Petitioners-
in-Intervention, p. 33).

27 Article III of the Constitution provides:

Sec 4. No law shall be passed abridging the freedom of speech, of expression,


or of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.

28 Article III of the Constitution also provides:


Sec 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.

29 The time-honored doctrine against prior restraint is stated in New York


Times v. United States, 403 US 713 (1971), which has been invariably applied in
our jurisdiction, in this wise: "'Any system of prior restraints of expression
comes to this Court bearing a heavy presumption against its constitutional
validity.' The Government 'thus carries a heavy burden of showing justification
for the enforcement of such a restraint.'" (Bernas, The Constitution of the
Republic of the Philippines, 1987 ed., Vol. I., p. 142.)

30 With apologies to Lew Brown and Buddy (George Gard) De Sylva, "The Best
Things in Life Are Free," Good News, 1927, as quoted by John Barlett
in Barlett's Familiar Quotations, 1980 ed., p. 825.

31 For instance, Ebralonag vs. Division Superintendent of Schools of Cebu,


219 SCRA 256, March 1, 1993, reversed the Court's 34-years-old doctrine laid
down in Gerona vs. Secretary of Education, 106 Phil 2, August 12, 1959, and
upheld the right of Jehovah's Witnesses "to refuse to salute the Philippine flag
on account of their religious beliefs." Similarly, Olaguer vs. Military
Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-years-old ruling
in Aquino, Jr. vs. Military Commission, 63 SCRA 546, May 9, 1975, which
recognized the jurisdiction of military tribunals to try civilians for offense
allegedly committed during martial law. The Court likewise reversed itself in
EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated its earlier ruling
in National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the
validity of certain presidential decrees regarding the determination of just
compensation. In the much earlier case of Philippine Trust Co. vs. Mitchell, 59
Phil. 30, December 8, 1933, the Court revoked its holding in Involuntary
Insolvency of Mariano Velasco & Co., 55 Phil 353, November 29, 1930,
regarding the relation of the insolvency law with the then Code of Civil
Procedure and with the Civil Code. Just recently, the Court, in Kilosbayan vs.
Morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier grant of
standing to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA 110,
May 5, 1994.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,


vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL
TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T.


DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions 1proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the
Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present
Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that
the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To
put it at its mildest, such an approach has the arresting charm of novelty – but nothing else. It is in fact
self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a
Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would
be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of
constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and
13 respectively, respondents were required to answer each within ten days from notice. 5 There was a
comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly
argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the
submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for
decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the
dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and
mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It
then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It could
even be said that there was a need for it. It served to clear the atmosphere. It made manifest that, as of
January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the
Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not
only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a
matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as
that. What cannot be too strongly stressed is that the function of judicial review has both a positive and a
negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the
Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the
acts of coordinate branches but may also sustain their validity. In the latter case, there is an affirmation
that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this
character suffices. That is the meaning of the concluding statement in Javellana. Since then, this Court
has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated
barely two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten
cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose
amendments and how it may be exercised. More specifically as to the latter, the extent of the
changes that may be introduced, the number of votes necessary for the validity of a proposal, and
the standard required for a proper submission. As was stated earlier, petitioners were unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable
provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus:
"The Interim Batasang Pambansa shall have the same powers and its Members shall have the same
functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly
and the regular National Assembly and the Members thereof." 14One of such powers is precisely that
of proposing amendments. The 1973 Constitution in its Transitory Provisions vested theInterim National
Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the
majority of its members to be ratified in accordance with the Article on Amendments. 15 When, therefore,
the InterimBatasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos,
met as a constituent body it acted by virtue Of such impotence Its authority to do so is clearly beyond
doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may
be observed parenthetically that as far as petitioner Occena is Concerned, the question of the authority of
the Interim Batasang Pambansa to propose amendments is not new. In Occena v. Commission on
Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved
although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in
that case: "Considering that the proposed amendment of Section 7 of Article X of the Constitution
extending the retirement of members of the Supreme Court and judges of inferior courts from sixty-five
(65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution
and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as
through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive
in character that they go far beyond the limits of the authority conferred on the Interim Batasang
Pambansa as Successor of the Interim National Assembly. For them, what was done was to revise
and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court,
in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the
Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an Ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for ratification.
Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution.
4. The fact that the present Constitution may be revised and replaced with a new one ... is no argument
against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire
Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed
would become immaterial the moment the same is ratified by the sovereign people." 19 There is here the
adoption of the principle so well-known in American decisions as well as legal texts that a constituent
body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle
not only sound in theory but also advantageous in practice.

(3) That leaves only the questions of the vote necessary to propose amendments as well as the
standard for proper submission. Again, petitioners have not made out a case that calls for a
judgment in their favor. The language of the Constitution supplies the answer to the above
questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose
amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition
to assert that the three-fourth votes required when it sits as a legislative body applies as well when it
has been convened as the agency through which amendments could be proposed. That is not a
requirement as far as a constitutional convention is concerned. It is not a requirement either when,
as in this case, the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies,
such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an
amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own
a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No.
2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a
vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity?
As to the requisite standard for a proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the plebiscite but also from the
standpoint of such amendments having been called to the attention of the people so that it could not
plausibly be maintained that they were properly informed as to the proposed changes. As to the
period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to
the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months
after the approval of such amendment or revision." 21 The three resolutions were approved by
the InterimBatasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the
Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day
period provided by the Constitution. Thus any argument to the contrary is unavailing. As for the people
being adequately informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of
Justice Antonio, where the amendment restored to seventy the retirement age of members of the
judiciary, the proposed amendments have "been intensively and extensively discussed at
the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be
said that our people are unaware of the advantages and disadvantages of the proposed amendment [ s
]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera,
JJ., concur.

Abad Santos, J., is on leave.

Separate Opinions
TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary
restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October
1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la
Llana vs. Comelec 3 , questioning the validity of the December 17, 1977 referendum – exercise as to the
continuance in office as incumbent President and to be Prime Minister after the organization of the Interim
Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I am constrained to
dissent from the majority decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the procedure for
the ratification of the amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come to existence and the
proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This means, under the prevailing
doctrine ofTolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly
provided in the Transitory Article XVII which would then have to be convened and not from the executive
power as vested in the President (Prime Minister) from whom such constituent power has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the
October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the government (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental law is anachronistic
in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate
my stand inSanidad that the doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973 Constitution which increased
the official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially
adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex, complicated
and radical amendments of our very structure of government were considered and approved by the
Interim Batasang Pambansa sitting as a constituent assembly on February 27, 1981. It set the date of the
plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and far short of the ninety-
day period fixed by the Constitution for submittal to the people to "sufficiently inform them of the
amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine
manner." 6

4. "The minimum requirements that must be met in order that there can be a proper submission to
the people of a proposed constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion inGonzales bears repeating as follows: "... we take the view that the
words 'submitted to the people for their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the people, an expression of their
sovereign will – is that it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality
or agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so
be it. For the people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary
restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October
1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la
Llana vs. Comelec 3 , questioning the validity of the December 17, 1977 referendum – exercise as to the
continuance in office as incumbent President and to be Prime Minister after the organization of the Interim
Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I am constrained to
dissent from the majority decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the procedure for
the ratification of the amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come to existence and the
proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This means, under the prevailing
doctrine ofTolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly
provided in the Transitory Article XVII which would then have to be convened and not from the executive
power as vested in the President (Prime Minister) from whom such constituent power has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the
October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the government (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental law is anachronistic
in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate
my stand inSanidad that the doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973 Constitution which increased
the official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially
adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex, complicated
and radical amendments of our very structure of government were considered and approved by the
Interim Batasang Pambansa sitting as a constituent assembly on February 27, 1981. It set the date of the
plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and far short of the ninety-
day period fixed by the Constitution for submittal to the people to "sufficiently inform them of the
amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine
manner." 6

4. "The minimum requirements that must be met in order that there can be a proper submission to
the people of a proposed constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion inGonzales bears repeating as follows: "... we take the view that the
words 'submitted to the people for their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the people, an expression of their
sovereign will – is that it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality
or agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so
be it. For the people decree their own fate."
Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'

Footnotes

1 Resolution Nos. 28, 104 and 106(1981).

2 Javellana v. The Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.

3 L-56350, Samuel C. Occena v. The Commission on Elections, The Commission on


Audit, The National Treasurer and the Director of Printing.

4 L-56404, Ramon A. Gonzales v. The National Treasurer and the Commission on


Elections. The other co-petitioners are Manuel B. Imbong, Jo Aurea Marcos- Imbong,
Ray Allan T. Drilon, Nelson V. Malana and Gil M. Tabios.

5 There was on March 24 an amended petition in Occena, adopting the theory of


petitioner Gonzales that the 1935 Constitution was once again in force and effect.

6 It should not be lost sight of that four other cases where decided in the joint
resolution of dismissal dated March 31, 1973, Tan v. The Executive Secretary, L-
36164; Roxas v. Melchor, L-36165; Monteclaro v. The Executive Secretary, L-36236;
Dilag v. The Honorable Executive Secretary, L-36283, all reported in 50 SCRA 30.

7 The six votes came from Justices Makalintal Castro, Barredo, Makasiar, Antonio
and Esguerra.

8 The four votes were cast by then Chief Justice Concepcion, the late Justice
Zaldivar, and Justice Teehankee as well as the writer of this opinion.

9 50 SCRA at 141. Concepcion, C.J., dissented from this concluding statement.

10 Black, The People and the Court 56-58 (1962).

11 Murphy, Elements of Judicial Strategy 17-18 (1964).

12 G.R. No. 56158-64, March 17, 1981.

13 Cf. Garcia v. Domingo, L-30104, July 25, 1973, 52 SCRA 143;

Buendia v. City of Baguio, L-34011, July 25, 1973, 52 SCRA 155; Flores v. Flores, L-
28930, August 17, 1973, 52 SCRA 293; Alfanta v. Nao, L-32362, September 19,
1973, 53 SCRA 76; People v. Molina, L-30191, October 7, 1973, 53 SCRA 495;
People v. Zamora, L-34090, November 16, 1973, 54 SCRA 47; Republic v. Villasor,
L-30671, November 28, 1973, 54 SCRA 83; Paulo v. Court of Appeals, L-33845,
December 18, 1973, 54 SCRA 253; People v. Bacong, L-36161,

December 19, 1973, 54 SCRA 288 and Asian Surety and Insurance Co. v. Herrera,
L-25232, December 20, 1973, 54 SCRA 312.

It may be mentioned that the first of such cases, Garcia, was promulgated on July
25, 1973 with the writer of this opinion as opposite and the next case, Buendia, also
on the same date, with Justice Teehankee as ponente, both of whom were
dissenters in Javellana, but who felt bound to abide by the majority decision.

14 1976 Amendments, par. 2. The last sentence follows: "However, it shall not
exercise the powers provided in article VIII, Section 14, (1) of the Constitution."
Article VIII, Section 14, par. (1) reads as follows: "Except as otherwise provided in
this Constitution. no treaty shall be valid and effective unless concurred in by a
majority of all the members of the National Assembly."

15 Article XVII, Section 15 of the Constitution reads as follows: "The interim National
Assembly, upon special call by the interim Prime Minister, may, by a majority vote of
all its Members, propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof."

16 L-52265, 95 SCRA 755.

17 Ibid, 762.

18 L-32476, October 20, l970, 35 SCRA 367.

19 lbid, 369-370.

20 Cf. Ex parte Kerby, 205 P279 (1922).

21 Article XVI, Section 2 of the Constitution.

22 L-52265, 95 SCRA 755, 762. The writer of this opinion, along with retired Chief
Justice Concepcion and Justices Makalintal and Bengzon, is committed to the view
expressed in the ponencia of the retired Chief Justice that in the final analysis the
question of proper

submission reduces itself not as to power, which is the concern of the judiciary, but
as to wisdom, which is entrusted to the constituent body proposing the amendments.
Gonzales v. Commission on Elections, L-28196, November 9, 1967, 21 SCRA 774,
801. The opposing view was set forth by Justice Sanchez.

Teehankee, J.

1 73 SCRA 333 (1976).

2 80 SCRA 538 (1977).

3 80 SCRA 525 (1977).


4 L-34150, Oct. 16, 1971, 41 SCRA 702 and Resolution denying motion for
reconsideration dated Nov. 4, 1971.

5 21 SCRA 774.

6 21 SCRA, at page 817.


Salonga vs. Cruz Paño, 134 SCRA 438, No. L-59524, February 18, 1985

G.R. No. L-59524 February 18, 1985

JOVITO R. SALONGA, petitioner,


vs.
HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE
RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO
APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

GUTIERREZ, JR., J.:

The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that
no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this
Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a
member of the democratic opposition in the Philippines.

The background of this case is a matter of public knowledge.

A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On
September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed
himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA
building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May,
1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner
Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests,
including Lovely.

As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center
(V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of
General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two
brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property.

On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American
lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons.

On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of
Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder
brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated
that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when
he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's
house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother.

The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the
various bombings in Metro Manila.

Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of
Col. Madella where he was held incommunicado for some time.

On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely:
Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General
Military Council was called for October 6, 1980.

On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the
American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next
twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by
Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be
a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where
he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer
showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the
petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoñez v. Gen. Fabian
Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be
respected.

On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room
without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was
transferred and detained, nor was he ever investigated or questioned by any military or civil authority.

Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed
"under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges.

On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" in People v.
Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-
entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt
of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the
time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the
charges against him nor any copies of the so-called supporting evidence.

On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice.

On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated
Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code.
The inquest court set the preliminary investigation for March 17, 1981.

On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo
comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to
save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally
at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel
and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter
from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left
eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear.
The petitioner's physical ailments led him to seek treatment abroad.

On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen.
Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as
amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The
prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles,
California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor
Lovely himself.

On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the
prosecution to establish a prima facie case against him.

On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing
of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein
petitioner.

The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is
the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an
information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to
admit that no rule of law exists in the Philippines today.

After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to
establish a prima facie case against the petitioner. We grant the petition.

However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory
in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when
it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest
dictates that criminal prosecutions should not be enjoined.

The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a
petition for certiorari is clearly warranted. The case at bar is one such exception.

In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit:

xxx xxx xxx

... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the
remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to
go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is
rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101
Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.)

On this argument, we ruled:

There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under
certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of
a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap
v. Lutero, G.R. No. L-12669, April 30, 1969."

Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to
be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a
democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of
the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still
unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial
asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to
him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v.
Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for
the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the
complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an
information after finding that a prima facie case had been established against an of the forty persons accused.

In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the
initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him,
justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there
are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt
against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The
prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the
petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of
international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to
testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made
to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the
foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely
abused his discretion in issuing the questioned resolutions.

The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is
not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at
what cost not only to the petitioner but to the basic fabric of our criminal justice system?

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the
proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction.
The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained
or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction?
We do not think so.

The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col.
Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in
the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines
(MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he
was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator
Salonga where they met together with Renato Tañada, one of the brains of the bombing conspiracy ... and the fact that Sen.
Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns
Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy
exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary
as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal
knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations,
whether petitioner was an organizer, officer or a member, the witness replied:

A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we
have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the
United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in
some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)

Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of
subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or
not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v.
Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the
court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to
Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually
led to the filing of the information.

Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made
before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a
prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both
included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and
cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella.
After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution
witness.

According to Lovely's statement, the following events took place:

36. Q. Did Psinakis tell you where to stay?

A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give
the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed
the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there
to give the materials I needed to accomplish my mission

37. Q. Did you comply as instructed?

A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner,
then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila.

38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis?

A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31,
1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am
expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang
nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my
number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I
was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's
place at exactly 4 P.M.
39. Q. What happened then?

A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed
me that somebody will be coming to give me the attache case but did not tell me the name.

40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials?

A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I
have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able
to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and
the latest opposition group activities but it seems he is well informed.

41. Q. How long did you wait until that somebody arrived?

A. About thirty (30) minutes.

41. Q. What happened when the man arrived?

A. This man arrived and I was greatly surprised to see Atty. Renato Tañada Jovy Salonga was the one who met him and as I
observed parang nasa sariling bahay si Tañada nung dumating. They talked for five (5) minutes in very low tones so I did not
hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Tañada told me
"Nasa akin ang kailangan mo, nasa kotse."

43. Q. Were the materials given to you?

A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Tañadas old Pontiac car colored
dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Tañada handed me a "Puma" bag containing all
the materials I needed.

xxx xxx xxx

45. Q. What were the contents of the Puma bag?

A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10)
pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10)
plastic packs of high explosive about 1 pound weight each.

However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also
offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's
participation was concerned:

xxx xxx xxx

Q. Who were the people that you contacted in Manila and for what purpose?

A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would
just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who
is close to me. Mr. Psinakis suggested the residence of Sen. Salonga.

And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I
was able to contact him. I made an appointment t• see him. I went to Sen. Salonga's house the following day. I asked Sen.
Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen.
Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A
few minutes after my arrival Atty. Renato Tañada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to
me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I
alighted at the Broadway Centrum. (Emphasis supplied)

During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter
mentioned in his sworn statement:
Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of
Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization
plan as alleged by you already formulated?

WITNESS:

A. Not to my knowledge.

COURT TO WITNESS:

Q. Mr. Witness, who invited you to the party?

A. Raul Daza, your Honor.

Q. Were you told that Mr. Salonga would be present in the party.

A. I am really not quite sure, your Honor.

Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the
party?

A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).

Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he
really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any
ground. In sustaining the objection, the Court said:

Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the
avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far
as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He
never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be
unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)

Respondent judge further said:

COURT:

As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the
matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is
concerned. I don't know why it concerns this cross-examination.

ATTY. YAP:

Because according to him, it was in pursuance of the plan that he came to Manila.

COURT:

According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he
(Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems
to be the thrust of the questions.

COURT:

In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the
time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of
Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only
cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation"
in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Tañada,
which was all that Lovely really stated in his testimony.

However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of
petitioner in the United States as his basis for denying the motion to dismiss:

On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my
recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted
by President Marcos immediately.

It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes
a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it
appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of
force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens
for its supporters and financiers.

The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not
only inexplicable but without foundation.

The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or
terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of
subversive organizations for two reasons-

(1) Because his house was used as a "contactpoint"; and

(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by
President Marcos immediately."

The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to
conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some
plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The
right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined.

The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Tañada
could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator
Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November,
1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred
of visitors from week to week in his residence but cannot recall any Victor Lovely.

The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a
guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed
with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the
matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves
nothing.

It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of
all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a
birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive,
much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless,
even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution
evidence is still inadequate to establish a prima facie finding.

The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed
activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already
testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of
members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the
petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really
stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for
his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v.
Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any
other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we
hate."

We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than
substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental
postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo
in Palko v. Connecticut(302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that
freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially
mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been
imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of
political truth. It cannot be the basis of criminal indictments.

The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the
moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent
action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal
threats and constitutionally protected speech.

It stated:

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must
interpret the language Congress chose against the background of a profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of
the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner
that his only offense was a kind of very crude offensive method of stating a political opposition to the President.

In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a
conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of
violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust,
caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case
of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used
according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy.

Political discussion even among those opposed to the present administration is within the protective clause of freedom of
speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a
subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute,
prima facie evidence of membership in a subversive organization if such discussion amounts to:

(6) Conferring with officers or other members of such association or organizationin furtherance of any plan or enterprise
thereof.

As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any
subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday
party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government
through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either
advocacy of or incitement to violence or furtherance of the objectives of a subversive organization.

Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that
occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63,
July 8, 1981). He further testified that:

WITNESS:

Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed
against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been
commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the
first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner:

COURT:

Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga?

A. No, your Honor. I did not try to implicate Salonga.

It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a
prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that
it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga",
especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the
petitioner and the bombing incidents.

The respondent court should have taken these factors into consideration before concluding that a prima facie case exists
against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself
such as the common experience and observation of mankind can approve as probable under the circumstances. (People v.
Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the
bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made
by Lovely during his detention.

The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the
bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the
respondent judge as if they had already been proved beyond reasonable doubt.

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to
protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to
protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The
right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process.
(See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary
investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play
which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be,
to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a
prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the
conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates
of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the
prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a
basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and
not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of
Rizal, 116 SCRA 93).

The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a
draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge
Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner.
Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of
petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution.

We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from
circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations.

Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been
rendered moot and academic by the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same
acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not
completely academic.

Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions.

The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for
the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is
not the totality of the Court's functions.

The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has
the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.

In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore,
constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his
escape but we nonetheless rendered a decision and stated:

The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and
unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that
excessive bail shall not be required.

In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an
executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative
powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of
Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution).

In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released
from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal
possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its
symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports.

In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima
facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an
officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner.
We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence
against the petitioner found in the records.

WHEREFORE, the petition is DISMISSED for having become moot and academic.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova and Cuevas, JJ., concur.

Aquino, De la Fuente and Alampay, JJ., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus.
Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court
resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with
the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the
merits because it posed important legal questions.

Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for
prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of
their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed
the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In
dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned
disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition
rather than dismiss it for having become moot and academic.

I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have
become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs.
Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez.

I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by
the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No.
Q-18606 insofar as he is concerned.

I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit
the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court
has been preempted by a "first strike" which has occurred once too often.

Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had
been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to
circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events.
The decision could have had a greater impact had it been promulgated prior to the executive action.

Separate Opinions

ABAD SANTOS, J., concurring

Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus.
Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court
resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with
the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the
merits because it posed important legal questions.

Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for
prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of
their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed
the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In
dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned
disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition
rather than dismiss it for having become moot and academic.

I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have
become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs.
Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez.

I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by
the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No.
Q-18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit
the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court
has been preempted by a "first strike" which has occurred once too often.

Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had
been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to
circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events.
The decision could have had a greater impact had it been promulgated prior to the executive action.

Footnotes

* In the Philippines Daily Express, dated December 8, 1981, Lovely was quoted as having said in the United States that "I was
not the bomber, I was bombed."

Lovely, who was granted immunity in the United States, reportedly would not testify before a San Francisco federal grand jury
and instead said, "Your Honor, I came back to tell what happened in the Philippines. I was not the bomber, I was bombed."

The United Press International dispatch from San Francisco, U.S., written by Spencer Sherman, gives a fuller account, thus:

With the grand jury present in the courtroom Lovely alleged it was Philippine authorities who were responsible for his injuries.
It was they, not him, who placed the bomb in his hotel room, he said.

I came back to the States to tell what happened in the Philippines. I was not the bomber. I was bombed. There are so many
secrets that will come out soon. I cannot (testify) even if I will be jailed for lifetime. I welcome that."

— UPO press dispatch from

San Francisco, November 24, 1981.

The Philippine News, a San Francisco-based weekly, in its issue of December 23, 1981, contains the same account, with the
following words:

"Your Honor . . . I am not going to participate I was almost murdered. I cannot continue. My friends were murdered before I
came to the United States . . . I came back to the United States to tell what happened in the Philippines. I was not the bomber, I
was bombed. There are many secrets that will come out very soon I cannot. Even if I will be jailed for lifetime. I welcome that.
EN BANC

[G.R. Nos. L-68379-81. September 22, 1986.]

EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and


ARTURO F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

SYLLABUS

1.REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT
A CASE OF. — The abolition of the Batasang Pambansa and the disappearance of the
office in dispute between the petitioner and the private respondent — both of whom
have gone their separate ways — could be a convenient justification for dismissing this
case. But there are larger issues involved that must be resolved now, once and for all,
not only to dispel the legal ambiguities here raised. The more important purpose is to
manifest in the clearest possible terms that this Court will not disregard and in effect
condone wrong on the simplistic and tolerant pretext that the case has become moot
and academic. The Supreme Court is not only the highest arbiter of legal questions but
also the conscience of the government. The citizen comes to us in quest of law but we
must also give him justice. The two are not always the same. There are times when we
cannot grant the latter because the issue has been settled and decision is no longer
possible according to the law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands
that we act then, not only for the vindication of the outraged right, though gone, but
also for the guidance of and as a restraint upon the future.

2.CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO


HEAR AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED
THERETO. — We believe that in making the Commission on Elections the sole judge of
all contests involving the election, returns and qualifications of the members of the
Batasang Pambansa and elective provincial and city officials, the Constitution intended
to give it full authority to hear and decide these cases from beginning to end and on all
matters related thereto, including those arising before the proclamation of the winners.

3.ID.; ID.; "CONTEST"; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. — The word
"contests" should not be given a restrictive meaning; on the contrary, it should receive
the widest possible scope conformably to the rule that the words used in the
Constitution should be interpreted liberally. As employed in the 1973 Constitution, the
term should be understood as referring to any matter involving the title or claims as title
to an elective office, made before or after proclamation of the winner, whether or not
the contestant is claiming the office in dispute. Needless to stress, the term should be
given a consistent meaning and understood in the same sense under both Section 2(2)
and Section 3 of Article XII-C of the Constitution.

4.ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME
SENSE UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. — The phrase "election,
returns and qualifications" should be interpreted in its totality as referring to all matters
affecting the validity of the contestee's title. But if it is necessary to specify, we can say
that "election" referred to the conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and counting of the votes; "returns"
to the canvass of the returns and the proclamation of the winners, including questions
concerning the composition of the board of canvassers and the authenticity of the
election returns; and "qualifications" to matters that could be raised in a quo
warranto proceeding against the proclaimed winner, such as his delivery or ineligibility
or the inadequacy of his certificate of candidacy.

5.ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND


DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. —
All these came under the exclusive jurisdiction of the Commission on Elections insofar as
they applied to the members of the defunct Batasang Pambansa and, under Article XII-
C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc.

6.ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY
SITTING EN BANC; PURPOSE. — As correctly observed by the petitioner, the purpose of
Section 3 in requiring that cases involving members of the Batasang Pambansa be heard
and decided by the Commission en banc was to insure the most careful consideration of
such cases. Obviously, that objective could not be achieved if the Commission could
act en banc only after the proclamation had been made, for it might then be too late
already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest
strategy of many unscrupulous candidates which has resulted in the frustration of the
popular will and the virtual defeat of the real winners in the election. The respondent's
theory would make this gambit possible for the pre-proclamation proceedings, being
summary in nature, could be hastily decided by only three members in division, without
the cause and deliberation that would have otherwise been observed by the
Commission en banc. After that, the delay. The Commission en banc might then no
longer be able to rectify in time the proclamation summarily and not very judiciously
made by the division. While in the end the protestant might be sustained, he might find
himself with only a Phyrric victory because the term of his office would have already
expired.

7.ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. — Another
matter deserving the highest consideration of this Court but accorded cavalier attention
by the respondent Commission on Elections is due process of law, that ancient guaranty
of justice and fair play which is the hallmark of the free society. Commissioner Opinion
ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of
the private respondent, he obstinately insisted on participating in the case, denying he
was biased.

8.ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF


DUE PROCESS. — This Court has repeatedly and consistently demanded "the cold
neutrality of an impartial judge" as the indispensable imperative of due process. To
bolster that requirement we have held that the judge must not only be impartial but
must also appear to be impartial as an added assurance to the parties that his decision
will be just. The litigants are entitled to no less than that. They should be sure that when
their rights are violated they can go to a judge who shall give them justice. They must
trust the judge, otherwise they will not go to him at all. They must believe in his sense of
fairness, otherwise they will not seek his judgment. Without such confidence, there
would be no point in invoking his action for the justice they expect.

9.ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR
PLAY. — Due process is intended to insure that confidence by requiring compliance with
what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice.
There cannot be equal justice where a suitor approaches a court already committed to
the other party and with a judgment already made and waiting only to be formalized
after the litigants shall have undergone the charade of a formal hearing. Judicial (and
also extra-judicial proceedings are not orchestrated plays in which the parties are
supposed to make the motions and reach the denouement according to a prepared
script. There is no writer to foreordain the ending. The judge will reach his conclusions
only after all the evidence is in and all the arguments are filed, on the basis of the
established facts and the pertinent law.

10.ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF
DELICADEZA. — The relationship of the judge with one of the parties may color the facts
and distort the law to the prejudice of a just decision. Where this is probable or even
only possible, due possible, due process demands that the judge inhibit himself, if only
out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion.
Commissioner Opinion, being a lawyer, should have recognized his duty and abided by
this well-known rule of judicial conduct. For refusing to do so, he divested the Second
Division of the necessary vote for the questioned decision, assuming it could act, and
rendered the proceedings null and void.

FELICIANO, J., concurring:

1.CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION


CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC. —
Although this petition has become moot and academic, the decision, dated 23 July 1984,
of the Second Division of the Commission on Elections which had proclaimed Arturo F.
Pacificador as the duly elected Assemblyman of the province of Antique must be set
aside or, more accurately, must be disregarded as bereft of any effect in law. J. Feliciano
reaches this result on the same single, precisely drawn, ground relied upon by Melencio-
Herrera, J., that all election contests involving members of the former Batasan
Pambansa must be decided by the Commission on Elections en banc under Sections 2
and 3 of Article XII-C of the 1973 Constitution. These Sections do not distinguish
between "pre-proclamation" and "post-proclamation" contests nor between "cases"
and "contests."

MELENCIO-HERRERA, J., concurring:

1.CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER


CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA. — I concur in the
result. The questioned Decision of the Second Division of the COMELEC, dated July 23,
1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected
Assemblyman of the province of Antique, should be set aside for the legal reason that all
election contests, without distinction as to cases or contests, involving members of the
defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc
pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution.

DECISION

CRUZ, J :
p

The new Solicitor General has moved to dismiss this petition on the ground that as a
result of supervening events it has become moot and academic. It is not as simple as
that, Several lives have been lost in connection with this case, including that of the
petitioner himself. The private respondent is now in hiding. The purity of suffrage has
been defiled and the popular will scorned through a confabulation of those in authority.
This Court cannot keep silent in the face of these terrible facts. The motion is denied.

The petitioner and the private respondent were candidates in Antique for the Batasang
Pambansa in the May 1984 elections. The former appeared to enjoy more popular
support but the latter had the advantage of being the nominee of the KBL with all its
perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest
between the two came to a head when several followers of the petitioner were
ambushed and killed, allegedly by the latter's men. Seven suspects, including
respondent Pacificador, are now facing trial for these murders. The incident naturally
heightened tension in the province and sharpened the climate of fear among the
electorate. Conceivably, it intimidated voters against supporting the Opposition
candidate or into supporting the candidate of the ruling party.

It was in this atmosphere that the voting was held, and the post-election developments
were to run true to form. Owing to what he claimed were attempts to railroad the
private respondent's proclamation, the petitioner went to the Commission on Elections
to question the canvass of the election returns. His complaints were dismissed and the
private respondent was proclaimed winner by the Second Division of the said body. The
petitioner thereupon came to this Court, arguing that the proclamation was void
because made only by a division and not by the Commission on Elections en banc as
required by the Constitution. Meanwhile, on the strength of his proclamation, the
private respondent took his oath as a member of the Batasang Pambansa.

The case was still being considered by this Court when on February 11, 1986, the
petitioner was gunned down in cold blood and in broad daylight. The nation, already
indignant over the obvious manipulation of the presidential elections in favor of Marcos,
was revolted by the killing, which flaunted a scornful disregard for the law by the
assailants who apparently believed they were above the law. This ruthless murder was
possibly one of the factors that strengthened the cause of the Opposition in the
February revolution that toppled the Marcos regime and installed the present
government under President Corazon C. Aquino.

The abolition of the Batasang Pambansa and the disappearance of the office in dispute
between the petitioner and the private respondent — both of whom have gone their
separate ways — could be a convenient justification for dismissing this case. But there
are larger issues involved that must be resolved now, once and for all, not only to dispel
the legal ambiguities here raised. The more important purpose is to manifest in the
clearest possible terms that this Court will not disregard and in effect condone wrong on
the simplistic and tolerant pretext that the case has become moot and academic.
The Supreme Court is not only the highest arbiter of legal questions but also the
conscience of the government. The citizen comes to us in quest of law but we must also
give him justice. The two are not always the same. There are times when we cannot
grant the latter because the issue has been settled and decision is no longer possible
according to the law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands
that we act then, not only for the vindication of the outraged right, though gone, but
also for the guidance of and as a restraint upon the future.

It is a notorious fact decried by many people and even by the foreign press that
elections during the period of the Marcos dictatorship were in the main a desecration of
the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters,
falsified returns, and other elections anomalies misrepresented and vitiated the popular
will and led to the induction in office of persons who did not enjoy the confidence of the
sovereign electorate. Genuine elections were a rarity. The price at times was human
lives. The rule was chicanery and irregularity, and on all levels of the polls, from the
barangay to the presidential. This included the rigged plebiscites and referenda that also
elicited the decision and provoked the resentments of the people.

Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of
elections in other provinces dominated by the KBL. Terrorism was a special feature, as
demonstrated by the killings previously mentioned, which victimized no less than one of
the main protagonists and implicated his rival as a principal perpetrator. Opposition
leaders were in constant peril of their lives even as their supporters were gripped with
fear of violence at the hands of the party in power.LLjur

What made the situation especially deplorable was the apparently indifferent attitude
of the Commission on Elections toward the anomalies being committed. It is a matter of
record that the petitioner complained against the terroristic acts of his opponents. All
the electoral body did was refer the matter to the Armed Forces without taking a more
active step as befitted its constitutional role as the guardian of free, orderly and honest
elections. A more assertive stance could have averted the Sibalom election eve
massacre and saved the lives of the nine victims of the tragedy.

Public confidence in the Commission on Elections was practically nil because of its
transparent bias in favor of the administration. This prejudice left many opposition
candidates without recourse except only to this Court.

Alleging serious anomalies in the conduct of the elections and the canvass of the
election returns, the petitioner went to the Commission on Elections to prevent the
impending proclamation of his rival, the private respondent herein. 1 Specifically, the
petitioner charged that the elections were marred by "massive terrorism, intimidation,
duress, vote-buying, fraud, tampering and falsification of election returns under duress,
threat and intimidation, snatching of ballot boxes perpetrated by the armed men of
respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya,
Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed
the election returns were not placed in the ballot boxes but merely wrapped in cement
bags or manila paper.

On May 18, 1984, the Second Division of the Commission on Elections directed the
provincial board of canvassers of Antique to proceed with the canvass but to suspend
the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the
same Second Division ordered the board to immediately convene and to proclaim the
winner without prejudice to the outcome of the case before the Commission. 4
On certiorari before this Court, the proclamation made by the board of canvassers was
set aside as premature, having been made before the lapse of the 5-day period of
appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the
Second Division promulgated the decision now subject of this petition which inter
alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of
Antique. 6

This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime
Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that
he was a former law partner of private respondent Pacificador, Opinion had refused. 7

The petitioner then came to this Court, asking us to annul the said decision.

The core question in this case is one of jurisdiction, to wit: Was the Second Division of
the Commission on Elections authorized to promulgate its decision of July 23, 1984,
proclaiming the private respondent the winner in the election? LibLex

The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973
Constitution.

Section 2 confers on the Commission on Elections the power to:

"(2)Be the sole judge of all contests relating to the election, returns and
qualifications of all member of the Batasang Pambansa and elective provincial
and city officials."

Section 3 provides:
"The Commission on Elections may sit en banc or in three divisions. All election
cases may be heard and decided by divisions except contests involving
members of the Batasang Pambansa, which shall be heard and decided en
banc. Unless otherwise provided by law, all election cases shall be decided
within ninety days from the date of their submission for decision."

While both invoking the above provisions, the petitioner and the respondents have
arrived at opposite conclusions. The records are voluminous and some of the pleadings
are exhaustive and in part even erudite. And well they might be, for the noble
profession of the law — despite all the canards that have been flung against it — exerts
all efforts and considers all possible viewpoints in its earnest search of the truth.

The petitioner complains that the proclamation made by the Second Division is invalid
because all contests involving the members of the Batasang Pambansa come under the
jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to
insure a more careful decision, considering the importance of the offices involved. The
respondents, for their part, argue that only contests need to be heard and decided en
banc and all other cases can be — in fact, should be — filed with and decided only by
any of the three divisions.

The former Solicitor General makes much of this argument and lays a plausible
distinction between the terms "contests" and "cases" to prove his point. 8 Simply put,
his contention is that the pre-proclamation controversy between the petitioner and the
private respondent was not yet a contest at that time and therefore could be validly
heard by a mere division of the Commission on Elections, consonant with Section 3. The
issue was at this stage still administrative and so was resoluble by the Commission
under its power to administer all laws relative to the conduct of elections, 9 not its
authority as sole judge of the election contest.

A contest, according to him, should involve a contention between the parties for the
same office "in which the contestant seeks not only to oust the intruder but also to have
himself inducted into the office." 10 No proclamation had as yet been made when the
petition was filed and later decided. Hence, since neither the petitioner nor the private
respondent had at that time assumed office, there was no Member of the Batasang
Pambansa from Antique whose election, returns or qualifications could be examined by
the Commission on Elections en banc.

In providing that the Commission on Elections could act in division when deciding
election cases, according to this theory, the Constitution was laying down the general
rule. The exception was the election contest involving the members of the Batasang
Pambansa, which had to be heard and decided en banc. 11 The en bancrequirement
would apply only from the time a candidate for the Batasang Pambansa was proclaimed
as winner, for it was only then that a contest could be permitted under the law. All
matters arising before such time were, necessarily, subject to decision only by division
of the Commission as these would come under the general heading of "election cases."

As the Court sees it, the effect of this interpretation would be to divide the jurisdiction
of the Commission on Elections into two, viz.: (1) over matters arising beforethe
proclamation, which should be heard and decided by division in the exercise of its
administrative power; and (2) over matters arising after the proclamation, which could
be heard and decided only en banc in the exercise of its judicial power. Stated
otherwise, the Commission as a whole could not act as sole judge as long as one of its
divisions was hearing a pre-proclamation matter affecting the candidates for the
Batasang Pambansa because there was as yet no contest; or to put it still another way,
the Commission en banc could not do what one of its divisions was competent to do,
i.e., decide a pre-proclamation controversy. Moreover, a mere division of the
Commission on Elections could hear and decide, save only those involving the election,
returns and qualifications of the members of the Batasang Pambansa, all cases involving
elective provincial and city officials from start to finish, including pre-proclamation
controversies and up to the election protest, In doing so, it would exercise first
administrative and then judicial powers. But in the case of the Commission en banc, its
jurisdiction would begin only after the proclamation was made and a contest was
filed and not at any time and on any matter before that, and always in the exercise only
of judicial power.

This interpretation would give to the part more powers than were enjoyed by the
whole, granting to the division while denying to the banc. We do not think this was the
intention of the Constitution. The framers could not have intended such an irrational
rule.

We believe that in making the Commission on Elections the sole judge of all contests
involving the election, returns and qualifications of the members of the Batasang
Pambansa and elective provincial and city officials, the Constitution intended to give
it full authority to hear and decide these cases from beginning to end and on all matters
related thereto, including those arising before the proclamation of the winners. Cdpr

It is worth observing that the special procedure for the settlement of what are now
called "pre-proclamation controversies" is a relatively recent innovation in our laws,
having been introduced only in 1978, through P.D. No. 1296, otherwise known as the
1978 Election Code. Section 175 thereof provided:
"Sec. 175.Suspension and annulment of proclamation. — The Commission shall
be the sole judge of all pre-proclamation controversies and any of its decisions,
orders or rulings shall be final and executory. It may, motu proprio or upon
written petition, and after due notice and hearing order the suspension of the
proclamation of a candidate-elect or annul any proclamation, if one has been
made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof."

Before that time all proceedings affecting the election, returns and qualifications of
public officers came under the complete jurisdiction of the competent court or tribunal
from beginning to end and in the exercise of judicial power only. It therefore could not
have been the intention of the framers in 1935, when the Commonwealth Charter was
adopted, and even in 1973, when the past Constitution was imposed, to divide the
electoral process into the pre-proclamation stage and the post-proclamation stage and
to provide for a separate jurisdiction for each stage, considering the first administrative
and the second judicial.

Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2)
was incorporated in the 1973 Constitution did not follow the strict definition of a
contention between the parties for the same office. Under the Election Code of 1971,
which presumably was taken into consideration when the 1973 Constitution was being
drafted, election contests included the quo warranto petition that could be filed by any
voter on the ground of disloyalty or ineligibility of the contestee although such voter
was himself not claiming the office involved. 12

The word "contests" should not be given a restrictive meaning; on the contrary, it
should receive the widest possible scope conformably to the rule that the words used in
the Constitution should be interpreted liberally. As employed in the 1973 Constitution,
the term should be understood as referring to any matter involving the title or claim of
title to an elective office, made before or after proclamation of the winner, whether or
not the contestant is claiming the office in dispute. Needless to stress, the term should
be given a consistent meaning and understood in the same sense under both Section
2(2) and Section 3 of Article XII-C of the Constitution.

The phrase "election, returns and qualifications" should be interpreted in its totality as
referring to all matters affecting the validity of the contestee's title. But if it is necessary
to specify, we can say that "election" referred to the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, and the casting and counting of
the votes; "returns" to the canvass of the returns and the proclamation of the winners,
including questions concerning the composition of the board of canvassers and the
authenticity of the election returns; and "qualifications" to matters that could be raised
in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or
ineligibility or the inadequacy of his certificate of candidacy.
LLjur

All these came under the exclusive jurisdiction of the Commission on Elections insofar as
they applied to the members of the defunct Batasang Pambansa and, under Article XII-
C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc.

We interpret "cases" as the generic term denoting the actions that might be heard and
decided by the Commission on Elections, only by division as a general rule except where
the case was a "contest" involving members of the Batasang Pambansa, which had to be
heard and decided en banc.

As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases
involving members of the Batasang Pambansa be heard and decided by the
Commission en banc was to insure the most careful consideration of such cases.
Obviously, that objective could not be achieved if the Commission could act en banconly
after the proclamation had been made, for it might then be too late already. We are all-
too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many
unscrupulous candidates which has resulted in the frustration of the popular will and
the virtual defeat of the real winners in the election. The respondent's theory would
make this gambit possible for the pre-proclamation proceedings, being summary in
nature, could be hastily decided by only three members in division, without the care and
deliberation that would have otherwise been observed by the Commission en banc.

After that, the delay. The Commission en banc might then no longer be able to rectify in
time the proclamation summarily and not very judiciously made by the division. While in
the end the protestant might be sustained, he might find himself with only a Phyrric
victory because the term of his office would have already expired.

It may be argued that in conferring the initial power to decide the pre-proclamation
question upon the division, the Constitution did not intend to prevent the
Commission en banc from exercising the power directly, on the theory that the greater
power embraces the lesser. It could if it wanted to but then it could also allow the
division to act for it. That argument would militate against the purpose of the provision,
which precisely limited all questions affecting the election contest, as distinguished from
election cases in general, to the jurisdiction of the Commission en banc as sole judge
thereof. "Sole judge" excluded not only all other tribunals but also and even the division
of the Commission. A decision made on the contest by less than the Commission en
banc would not meet the exacting standard of care and deliberation ordained by the
Constitution.
Incidentally, in making the Commission the "sole judge" of pre-proclamation
controversies in Section 175, supra, the law was obviously referring to the body
sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs.
Commission on Elections, 13 where the said provision was applied, were heard and
decided en banc.

Another matter deserving the highest consideration of this Court but accorded cavalier
attention by the respondent Commission on Elections is due process of law, that ancient
guaranty of justice and fair play which is the hallmark of the free society. Commissioner
Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law
partner of the private respondent, he obstinately insisted on participating in the case,
denying he was biased. 14

Given the general attitude of the Commission on Elections toward the party in power at
the time, and the particular relationship between Commissioner Opinion and MP
Pacificador, one could not be at least apprehensive, if not certain, that the decision of
the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's
refusal to inhibit himself and his objection to the transfer of the case to another division
cannot be justified by any criterion of propriety. His conduct on this matter belied his
wounded protestations of innocence and proved the motives of the Second Division
when it rendered its decision. cdll

This Court has repeatedly and consistently demanded "the cold neutrality of an
impartial judge" as the indispensable imperative of due process. 15 To bolster that
requirement, we have held that the judge must not only be impartial but must also
appear to be impartial as an added assurance to the parties that his decision will be just.
16 The litigants are entitled to no less than that. They should be sure that when their
rights are violated they can go to a judge who shall give them justice. They must trust
the judge, otherwise they will not go to him at all. They must believe in his sense of
fairness, otherwise they will not seek his judgment. Without such confidence, there
would be no point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what
Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There
cannot be equal justice where a suitor approaches a court already committed to the
other party and with a judgment already made and waiting only to be formalized after
the litigants shall have undergone the charade of a formal hearing. Judicial (and also
extrajudicial) proceedings are not orchestrated plays in which the parties are supposed
to make the motions and reach the denouement according to a prepared script. There is
no writer to foreordain the ending. The judge will reach his conclusions only after all the
evidence is in and all the arguments are filed, on the basis of the established facts and
the pertinent law.

The relationship of the judge with one of the parties may color the facts and distort the
law to the prejudice of a just decision. Where this is probable or even only possible, due
process demands that the judge inhibit himself, if only out of a sense of delicadeza. For
like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer,
should have recognized his duty and abided by this well-known rule of judicial conduct.
For refusing to do so, he divested the Second Division of the necessary vote for the
questioned decision, assuming it could act, and rendered the proceeding null and void.
17

Since this case began in 1984, many significant developments have taken place, not the
least significant of which was the February revolution of "people power" that dislodged
the past regime and ended well nigh twenty years of travail for this captive nation. The
petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins
whose motive is yet to be disclosed. The private respondent has disappeared with the
"pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been
abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom
Constitution. It is so easy now, as has been suggested not without reason, to send the
records of this case to the archives and say the case is finished and the book is closed.

But not yet.

Let us first say these meager words in tribute to a fallen hero who was struck down in
the vigor of his youth because he dared to speak against tyranny. Where many kept a
meekly silence for fear of retaliation, and still others feigned and fawned in hopes of
safety and even reward, he chose to fight. He was not afraid. Money did not tempt him.
Threats did not daunt him. Power did not awe him. His was a singular and all exacting
obsession: the return of freedom to his country. And though he fought not in the
barricades of war amid the sound and smoke of shot and shell, he was a soldier
nonetheless, fighting valiantly for the liberties of his people against the enemies of his
race, unfortunately of his race too, who would impose upon the land a perpetual night
of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very
real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and
Jonathan, "swifter than eagles and stronger than lions."

A year ago this Court received a letter which began: "I am the sister of the late Justice
Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel
Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in
the election eve ambush in Antique last year." She pleaded, as so did hundreds of others
of her provincemates in separate signed petitions sent us, for the early resolution of
that horrible crime, saying "I am 82 years old now. I am sick. May I convey to you my
prayer in church and my plea to you, 'Before I die, I would like to see justice to my son
and grandsons,' May I also add that the people of Antique have not stopped praying
that the true winner of the last elections will be decided upon by the Supreme Court
soon." LLpr

That was a year ago and since then a new government has taken over in the wake of the
February revolution. The despot has escaped, and with him, let us pray, all the
oppressions and repressions of the past have also been banished forever. A new spirit is
now upon our land. A new vision limns the horizon. Now we can look forward with new
hope that under the Constitution of the future every Filipino shall be truly sovereign in
his own country, able to express his will through the pristine ballow with only his
conscience as his counsel.

This is not an impossible dream. Indeed, it is an approachable goal. It can and will be
won if we are able at last, after our long ordeal, to say never again to tyranny. If we can
do this with courage and conviction, then and only then, and not until then, can we truly
say that the case is finished and the book is closed.

WHEREFORE, let it be spread in the records of this case that were it not for the
supervening events that have legally rendered it moot and academic, this petition would
have been granted and the decision of the Commission on Elections dated July 23, 1984,
set aside as violative of the Constitution.

SO ORDERED.

Feria, Yap, Narvasa, Alampay and Paras, JJ ., concur.

Teehankee, C . J ., I concur and reserve the filing of a separate concurrence.

Fernan and Gutierrez, Jr., JJ ., concur in the result.

Separate Opinions

MELENCIO-HERRERA, J ., concurring:

I concur in the result. The questioned Decision of the Second Division of the COMELEC,
dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly
elected Assemblyman of the province of Antique, should be set aside for the legal
reason that all election contests, without any distinction as to cases or contests,
involving members of the defunct Batasang Pambansa fall under the jurisdiction of the
COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution.

FELICIANO, J ., concurring:

I agree with the result reached, that is, although this petition has become moot and
academic, the decision, dated 23 July 1984, of the Second Division of the Commission on
Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman
of the Province of Antique must be set aside or, more accurately, must be disregarded
as bereft of any effect in law. I reach this result on the same single, precisely drawn,
ground relied upon by Melencio-Herrera, J.: that all election contests involving members
of the former Batasan Pambansa must be decided by the Commission on Elections en
banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These Sections do
not distinguish between "pre-proclamation" and "post-proclamation" contests nor
between "cases" and "contests."

Footnotes

1.Rollo, p. 26.

2.Rollo, p. 26.

3.Ibid., p. 9; p. 28.

4.Id., p. 30.

5.Id., p. 30.

6.Id., p. 62.

7.Id., p. 62; pp. 107-111.

8.Id., pp. 11-16; pp. 196-208.

9.Art. XII-C, Sec. 2(1), 1973 Constitution.

10.Vera vs. Avelino, 77 Phil. 191.

11.Art. XII-C, Sec. 3, 1973 Constitution.

12.Election Code of 1971, Sec. 219.


13.88 SCRA 251.

14.Rollo, pp. 109-111.

15.Mateo vs. Villaluz, 50 SCRA 18; Gutierrez vs. Santos, 2 SCRA 249.

16.People vs. Opida, G.R. No. L-46272, July 13, 1986, citing Fernandez vs. Presbitero, 79 SCRA
61; Sardinia-Linco vs. Pineda, 104 SCRA 757.

17.Comelec Res. No. 1669, Sec. 5.


EN BANC

[G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION


ON ELECTIONS, respondent.

DECISION

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary,
exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of
election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec
so as to minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission
on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21, 1998. In the said
Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or


any other groups, its agents or representatives from conducting such exit survey
and to authorize the Honorable Chairman to issue the same."

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source
that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections x x x and to make [an] exit survey of the x x x vote during the elections
for national officials particularly for President and Vice President, results of which shall be
[broadcast] immediately."[2] The electoral body believed that such project might conflict with the
official Comelec count, as well as the unofficial quick count of the National Movement for Free
Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were
actually conducted and reported by media without any difficulty or problem.

The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of
a restraining order enjoining the petitioner or any [other group], its agents or representatives
from conducting exit polls during the x x x May 11 elections."[3]

In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a
reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition[5] is meritorious.

Procedural Issues: Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual
controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression transcend the
past election. The holding of periodic elections is a basic feature of our democratic government.
By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue
now will only postpone a task that could well crop up again in future elections.[6]

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.
It has the symbolic function of educating bench and bar on the extent of protection given by
constitutional guarantees."[7] Since the fundamental freedoms of speech and of the press are being
invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure
to exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over
to prevent a miscarriage of justice,[8] when the issue involves the principle of social justice or the
protection of labor,[9] when the decision or resolution sought to be set aside is a nullity,[10] or when
the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.[11]

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only
on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections.
Moreover, not only is time of the essence; the Petition involves transcendental constitutional
issues. Direct resort to this Court through a special civil action for certiorari is therefore
justified.

Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of


individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are announced to the public, usually through
the mass media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to
until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of


the mass media, committed to report balanced election-related data, including "the exclusive
results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused
its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution,
it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its
constitutional and statutory powers to promote a clean, honest, orderly and credible May 11,
1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might unduly confuse and influence the voters," and
that the surveys were designed "to condition the minds of people and cause confusion as to who
are the winners and the [losers] in the election," which in turn may result in "violence and
anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle
to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots,"
in violation of Section 2, Article V of the Constitution;[12] and relevant provisions of the Omnibus
Election Code.[13] It submits that the constitutionally protected freedoms invoked by petitioner
"are not immune to regulation by the State in the legitimate exercise of its police power," such as
in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear
and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be
manipulated easily. He insists that these polls would sow confusion among the voters and would
undermine the official tabulation of votes conducted by the Commission, as well as the quick
count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence on the freedoms of speech
and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a


'preferred' right and, therefore, stands on a higher level than substantive economic or other
liberties. x x x [T]his must be so because the lessons of history, both political and legal, illustrate
that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom."[14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or
of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court enunciated that at the very
least, free speech and a free press consist of the liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the


truth, of securing participation by the people in social and political decision-making, and of
maintaining the balance between stability and change.[17] It represents a profound commitment to
the principle that debates on public issues should be uninhibited, robust, and wide open.[18] It
means more than the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, or to take refuge in the existing climate of opinion on any matter of
public consequence. And paraphrasing the eminent justice Oliver Wendell Holmes,[19] we stress
that the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms
of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all
times and under all circumstances.[20] They are not immune to regulation by the State in the
exercise of its police power.[21] While the liberty to think is absolute, the power to express such
thought in words and deeds has limitations.

In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests
in determining the validity of restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous tendency' rule.
The first, as interpreted in a number of cases, means that the evil consequence of
the comment or utterance must be 'extremely serious and the degree of imminence
extremely high' before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x"[23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as


follows: If the words uttered create a dangerous tendency which the state has a
right to prevent, then such words are punishable. It is not necessary that some
definite or immediate acts of force, violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of force, violence,
or unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body seeks to
prevent."[24]

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of Manila;[26] as well
as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v.
Comelec[30] and, more recently, in Iglesia ni Cristo v. MTRCB.[31] In setting the standard or test for
the "clear and present danger" doctrine, the Court echoed the words of justice Holmes: "The
question in every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of proximity and degree."[32]

A limitation on the freedom of expression may be justified only by a danger of


such substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the
time element; the danger must not only be probable but very likely to be inevitable.[33] The evil
sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint
of a writing instrument.[34]

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction
is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.[35] And it is respondent's burden to overthrow such
presumption. Any act that restrains speech should be greeted with furrowed brows,[36] so it has
been said.

To justify a restriction, the promotion of a substantial government interest must be clearly


shown.[37] Thus:

"A government regulation is sufficiently justified if it is within the constitutional


power of the government, if it furthers an important or substantial government
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest."[38]

Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly, stifle fundamental personal liberties, when the end can be more
narrowly achieved.[39]
The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant to add meaning to the equally vital right of
suffrage.[40] We cannot support any ruling or order "the effect of which would be to nullify so
vital a constitutional right as free speech."[41] When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked
against actions allegedly made to assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain
them, the freedom to speak and the right to know are unduly curtailed.[42]

True, the government has a stake in protecting the fundamental right to vote by providing voting
places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to
preserve the sanctity and the integrity of the electoral process. However, in order to justify a
restriction of the people's freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research
data which may be used to study influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit
poll data not only for election-day projections, but also for long-term research.[43]

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to
its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an
exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise
thereof creates a clear and present danger to the community or it has a dangerous tendency." It
then contends that "an exit poll has the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the official count made by the Comelec
x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as much as
possible be representative or reflective of the general sentiment or view of the community or
group polled. Second, the survey result is not meant to replace or be at par with the official
Comelec count. It consists merely of the opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited data gathered from polled individuals.
Finally, not at stake here are the credibility and the integrity of the elections, which are exercises
that are separate and independent from the exit polls. The holding and the reporting of the results
of exit polls cannot undermine those of the elections, since the former is only part of the latter. If
at all, the outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and
confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive
behavior around the voting centers.[45] There is no showing, however, that exit polls or the means
to interview voters cause chaos in voting centers. Neither has any evidence been presented
proving that the presence of exit poll reporters near an election precinct tends to create disorder
or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on the
voters' answers to the survey questions will forever remain unknown and unexplored. Unless the
ban is restrained, candidates, researchers, social scientists and the electorate in general would be
deprived of studies on the impact of current events and of election-day and other factors on
voters' choices.

In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly tailored to advance a state
interest nor the least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible, so is regulating speech via an exit poll
restriction.[47]

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open
any alternative channel of communication to gather the type of information obtained through exit
polling. On the other hand, there are other valid and reasonable ways and means to achieve the
Comelec end of avoiding or minimizing disorder and confusion that may be brought about by
exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They may be required to explain to voters that the
latter may refuse to be interviewed, and that the interview is not part of the official balloting
process. The pollsters may further be required to wear distinctive clothing that would show they
are not election officials.[48] Additionally, they may be required to undertake an information
campaign on the nature of the exercise and the results to be obtained therefrom. These measures,
together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly
election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities
are randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on
their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results
are released to the public only on the day after the elections.[49] These precautions, together with
the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and
the electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted
and publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible
elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as to
be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden
is the association of voters with their respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom
they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of
exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued
by the Comelec en bancon April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Davide, Jr., CJ., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon Jr., JJ., concur.

Melo, J., joins separate opinion of J. Vitug.

Vitug, J., see separate opinion.

Kapunan, J., see dissenting opinion.


Mendoza, J., joins separate opinion of J. Vitug.

Pardo, J., no part.

[1]
Rollo, p. 14.
[2]
Ibid. Words in parentheses in the original; those in brackets supplied.
[3]
Petition, p. 4.
[4]
Rollo, p. 78 et seq.
[5]
This case was deemed submitted for resolution on January 19, 1999, upon receipt by the Court of the
Memorandum for the Respondent
[6]
See Gamboa Jr. v. Aguirre Jr., GR No. 134213, July 20, 1999.
[7]
134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.
[8]
Solis v. NLRC, 263 SCRA 629, October 28, 1996.
[9]
Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.
[10]
Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v. Court of Appeals, 190 SCRA 386, October 11,
1990.
[11]
Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart Industries Phils., Inc. v. NLRC, 176 SCRA
295, August 10, 1989; Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 111 SCRA 215,
January 30, 1982.
[12]
"Sec. 2. The congress shall provide a system for securing the secrecy and sanctity of the ballot x x x."
[13]
Citing §§ 195, 196, 207 and 261 (z-5, 7 & 16)
[14]
Salonga v. Cruz Paño, supra, pp. 458-459. See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18,
1969; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191,
June 5, 1973; National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207
SCRA 712, 715, March 31, 1992.
[15]
§ 4, Art. III of the Constitution.
[16]
Supra, p. 856, per Fernando, J. (later CJ)
[17]
Ibid., p. 857; citing Emerson, toward a General Theory of the First Amendment (1966)
[18]
Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964)
[19]
US v. Schwimmer, 279 US 644 (1929)
[20]
Ibid., p. 858.
[21]
Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.
[22]
102 Phil 152, October 18, 1957, per Bautista-Angelo, J.
[23]
Ibid., p. 161.
[24]
Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925)
[25]
80 Phil 71 (1948)
[26]
101 Phil 386 (1957)
[27]
28 SCRA 351, May 26, 1969.
[28]
31 SCRA 731, February 26, 1970.
[29]
35 SCRA 28, September 11, 1970.
[30]
Supra.
[31]
259 SCRA 529, July 26, 1996.
[32]
Cabansag v. Fernandez, supra; citing Schenck v. US, 249 US 47 (1919)
[33]
Gonzales v. Comelec, supra, pp. 860-861.
[34]
Adiong v. Comelec, supra.
[35]
Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137 SCRA 717, July 22, 1985.
[36]
Iglesia ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v. Minnesota, 283 US 697 (1931); Bantam
books, Inc. v. Sullivan, 372 US 58 (1963); and New York Times Co. v. Sullivan, supra.
[37]
Blo Umpar Adiong v. Comelec, supra. See also National Press Club v. Comelec, supra.
[38]
Adiong v. Comelec, supra.
[39]
Gonzales v. Comelec, supra, p. 871, citing Shelton v. Tucker, 364 US 479, 488.
[40]
Mutuc v. Comelec, 36 SCRA 228, 233-34, November 26, 1970; per Fernando, J. (later CJ)
[41]
Ibid., p. 236.
[42]
Adiong v. Comelec, supra.
[43]
Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985)
[44]
See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988)
[45]
See § 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised Penal Code.
[46]
838 F 2d 380 (9th Cir. 1988)
[47]
Ibid., citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434, 1436-37, 16 L Ed. 2d 484 (1966); Vanasco v.
Schwartz, 401 F Supp. 87, 100 (SDNY 1975), aff’d mem., 423 Us 1041, 96 S Ct. 763, 46 L Ed. 2d 630 (1976)
[48]
Exit Polls and the First Amendment, supra, p. 1935.
[49]
Petitioner’s Memorandum, p. 15.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-23480 September 11, 1979

J.M. TUASON & CO., INC., petitioner,


vs.
HON. COURT OF APPEALS, and GUILLERMO REÑOSA, respondents.

Araneta, Mendoza & Papa for petitioner.

Zosinto Rivar for respondents.

CONCEPCION JR., J.:

Petition for certiorari to review the decision of the Court of Appeals, Fifth Division 1 in CA-G. R. No.
29135-R, entitled "J. M. Tuason & Co., Inc., plaintiff-appellee vs. Guillermo Reñosa defendant-appellant, "
which reversed the decision and dismissed the case rendered by the Court of First Instance of Rizal,
Branch V, Quezon City (then Judge Nicasio Yatco) in that case for ejectment (Civil Case No. Q-3318),
with the following dispositive portion: 2

WHEREFORE, judgment is hereby rendered in this case in favor of the plaintiff and
against the defendant, ordering the latter or any person claiming under him to
remove their construction on the property mentioned in the complaint and described
in the plan Exhibit B and to surrender possession thereof to plaintiff; to pay the sum
of Pl2. 00 a month, by way of rentals from February 6, 1967, until possession of the
property is restored to plaintiff, and for him to pay the costs.

SO ORDERED.

It is not disputed that this case originated as an action for recovery of possession (ejectment)
instituted by the plaintiff (petitioner) corporation against the private respondent Guillermo Renosa
that in the trial court, respondent Reñosa admitted that petitioner corporation is the owner of the
disputed parcel of land covered by T.C.T. No. 1267 of the Register of Deeds of Quezon City on
which respondent constructed his residence on February 6, 1967; that the portion occupied by the
defendant consisted of 100 square meters; and that the reasonable rental value of the portion of
land occupied by respondent is P12 a month.

Respondent's defense to the action for ejectment was that he bought the disputed portion of land
from a certain Capt. Faustino C. Cruz, for the sum of P3,600.00; 3 that said Faustino C. Cruz acquired
the said portion from 3,000 square meters of land acquired by virtue of a compromise agreement in Civil
Case Nos. Q-135, Q-139, Q-177 and Q-186 of the Court of First Instance of Rizal, Quezon City
Branch; 4 and that all in all Faustino C. Cruz sold to respondent 360 square meters of the 3,000 square
meters allegedly allocated to the former in the compromise agreement.
The trial court ruled in favor of the petitioner in the ejectment case (Civil Case No. Q-3318) on the
grounds that petitioner is the registered owner of the questioned land (Exh. A); that as owner,
petitioner is entitled to possession as an attribute of ownership; that respondent's claim of the right to
possess the disputed land based on purchase of the same from Capt. Faustino C. Cruz who is the
supposed owner of the land by virtue of a compromise agreement is without any legal basis, for
Capt. Cruz was not a party in interest in the said compromise agreement; that even admitting that
said compromise agreement created a beneficial right in favor of Capt. Cruz because of the
agreement that herein petitioner shall reserve lands (12,000 square meters) for persons including
Capt. Cruz, said beneficial rights were subject to suspensive conditions (payment to the petitioner of
P250,000 and delivery to the petitioner of lots marked "refund" as well as approved by the National
Housing Commission and the Bureau of Lands of the Subdivision plan covering the entire property
involved in the compromise agreement); and said suspensive conditions were never fulfilled
because the "Deudors," the other party to the compromise agreement failed to fulfill said conditions.

Respondent Court of Appeals in reversing the trial court's decision based its stand on its firm belief
that the compromise agreement (Exhibit 1) between the petitioner and the "Deudors" created a valid
right in favor of Capt. Cruz to possess the property in question; that this valid right of possession was
transmitted to private respondent Reñosa when Cruz sold a portion of that land (360 square meters
for P3,600), in 1956, to Reñosa; 5 that there is no evidence that the Deudors have not complied with the
conditions to be fulfilled under the compromise agreement; that there is no evidence that the compromise
agreement was rescinded or annulled; and that Capt. Cruz' right to possess the disputed land being valid
and enforceable he could validly assign the same to respondent Reñosa.

To Our mind, the principal issue to be resolved in tills case is whethe private respondent Reñosas
predecessor-interest in the disputed property namely, Capt. Cruz, acquired a valid right to own and
possess said land a right that he could have legally trans private respondent Reñwhich wasosa to
entitle the latter to a better right to possession against the admitted registered owner of the land.

An examination of the Deed of Sale (EXH "2") which is the source and sold to respondent Reñe case
ofosas claim of his right to possess the disputed land, readily shows that the vendor Capt. Cruz
claimed to be "the true and sole owner" of the parcels of land, a portion of Deudor, et al. vs.
"Deudors" asosa "by virtue of the amicable settlement of th even respondent Reñe to thatJ.M.
Tuason, et al., Civil Case No. Q-135 of the Court of First Instance, Quezon City." It is, therefore, very
clear that even Capt. Faustino C. Cruz based his alleged true and sole ownership of the disputed
land on the compromise agreement.

A close scrutiny of Exhibit "1" immediately reveals in paragraph 8 (c ) of the same, that the value of
the lands reserved for the residences of Gov. Alejo Santos, Atty. Pastor L. de Guzman and Capt.
Faustino C. Cruz (12,000 square meters) which is P250,000 shall be deducted from the amount that
may be due the "Deudors." It is further provided that the certificates of title to the same lands
reserved for the above-mentioned persons shall be issued after delivery to the petitioner of the lots
marked "refund" shall have been effected and the subdivision plan approved by the National housing
Commission and the Bureau of Lands. The compromise agreement did not provide for an outright
transfer of title to the beneficiaries (including the 3,000 square meters allotted to Capt. Cruz), but
subjected said transfer to suspensive conditions, namely, deduction of P250,000 from the amount
that may be due the "Deudors;" after delivery to the petitioner of the lots marked "refund" shall have
been affected; and after the subdivision plan is approved by the National Planning Commission and
the Bureau of Lands.

The compromise agreement was entered into on April 10, 1953, and Capt. Cruz sold the disputed
property to private respondent on April 14, 1956. What strikes Us as unexplainable is why
notwithstanding his claim of sole ownership of the disputed land as vendor in 1956, he did not
possess any registered title to the same, if it were true that he acquired title to the same land as the
beneficiary by virtue of the compromise agreement of 1953. Capt. Cruz, not being a registered
owner of the disputed land at the time, could not have assigned a better right to private respondent
Renosa It is obvious that respondent Renosa never claimed ownership of the disputed land, and that
he admitted petitioner's ownership over the same. It is difficult to assail petitioner's argument that the
respondent Court of Appeals erred in stating that the original owner of the land in question were the
"Deudors" as even respondent Reñosa never alleged that in his answer nor presented evidence to
that effect. Respondent Reñosa continuously admitted that petitioner is the registered owner of the
disputed land. The Torrens Title of petitioner TCT No. 1267 [37686-Rizal] of the Registry of Deeds of
Quezon City) cannot be assailed, the more so when private respondent admits petitioner's
ownership of the disputed land, and did not or cannot show any title to the same either in his name
or that of his predecessor-in-interest Capt. Cruz.

Petitioner called Our attention to the decision of the Court of Appeals in J.M. Tuason & Co., Inc., et
al. vs. Ponciano Hernandez and J.M. Tuason & Co., Inc. vs. Rubillo San Diego, CA- G.R. Nos.
26696-R and 26697-R, promulgated January 31, 1963, wherein said Appellate Court repudiated the
claims in this case of private respondent Reñosa thus:

It is true that under EXH 1, plaintiff agreed to reserve for the residence of said
captain (Captain Cruz) 3,000 square meters of land consistent with the subdivision
plan that may be finally approved but the fact remains that the location of this 3,000
square meters lot is indefinite, still to be designated and reserved in the future, and
other than the uncorroborated testimony of Faustino Cruz, which is, however,
contradicted by the testimony of plaintiff's surveyor there is practically no evidence
showing that said plaintiff had designated and actually reserved for Cruz the 3,000
square meters lot mentioned in the compromise agreement. No subdivision plan that
has been finally approved and attesting to the testimony of Faustino Cruz was
adduced in evidence. On the other hand, the obligation of the plaintiff to reserve
3,000 square meters of land for Capt. Cruz arises only after the delivery to the
owners of the lots marked refund in Annex C shall have been effected and the
subdivision plan approved by the National Planning Commission and the Bureau of
Lands (Exh. 1, Item C, p. 6). However, it has not been shown that this condition
precedent has been complied with. On the contrary, we have reasonable ground to
believe that the Deudors failed to perform their part of the agreement, so much so
that in the above cited case of Deudors, et al. vs. J.M. Tuason & Co., Inc., the
Supreme Court rescinded the compromise agreement and released herein plaintiff
from its obligation arising therefrom. (emphasis omitted)

This decision was affirmed by the Supreme Court when it dismissed the petition for
certiorari to review the same. (G.R. Nos. L-21094 and 21047, Resolution dated April
22, 1963).

We are inclined to adhere to the aforementioned view, taking into consideration the fundamental
principle in law applicable to the circumstances of this case that mere possession of whatever length
cannot defeat the imprescriptible title to the holder of registered Torrens Title to real property, and
that registered real property under the Torrens system cannot be acquired by acquisitive
prescription. 6 The petitioner who is theregistered owner of the disputed land has a right to possess and
recover the same, as against private respondent Reñosa who merely claims a right to possess from his
predecessor-in-interest Capt. Cruz who likewise never acquired any right to possess the disputed
property. Both Capt. Cruz and respondent Reñosa cannot be considered exactly as possessors in good
faith because both of them knew at the time they entered into possession that petitioner was the
registered owner of the disputed land. Capt. Cruz cannot be considered a possessor in good faith
because as beneficiary of the compromise agreement he should be in a position to know that there were
suspensive conditions attached to his possible acquisition of the disputed property and that if the
conditions were not fulfilled, his right as beneficiary would never arise. Aside from the compromise
agreement as the only basis of Capt. Cruz' alleged right to the property in question, he and respondent
Reñosa were never able to prove transfer to ownership of the same from petitioner to Capt. Cruz, thus
strengthening the obvious fact that the suspensive conditions imposed in the compromise agreement
were never fulfilled and hence petitioner never transferred title to the reserved properties in favor of the
beneficiaries therein. As registered owner of the land and in the absence of any equal or better right on
the part of respondent Reñosa to possess the disputed land, petitioner is entitled to possession and
initiated the correct action when it brought Civil Case No. Q-3318 to recover possession of the same.

WHEREFORE, the decision of the respondent Court of Appeals in CA-G.R. No. 29135-R is hereby
reversed and set aside and the decision of the Quezon City Court of First Instance in Civil Case No.
Q-3318, revived and affirmed, with costs against private respondent Guillermo Reñosa.

SO ORDERED.

Barredo (Chairman), Antonio, Aquino and Guerrero, * JJ., concur.

Abad Santos, J., took no part.

#Footnotes

1 (then Associate Justices Magno S. Gatmaitan, Eugenio Angeles, Juan L. Canting)

2 Record on Appeal. p. 27.

3 Deed of Sale, Exh. 2.

4 Exhibit 1.

5 See Exhibit 2.

6 Art. 1126, Civil Code, Sec. 46, Act 496, Land Registration Act.

* Mr. Justice Guillermo S. Santos is on leave. Mr. Justice Juvenal K. Guerrero, a


member of the First Division, was designated to sit in the Second Division.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,


vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike —
but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement
of carabaos and the slaughtering of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage
to circumvent the prohibition against inter-provincial movement of carabaos by
transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No.
626 and the prohibition against interprovincial movement of carabaos, it is necessary
to strengthen the said Executive Order and provide for the disposition of the
carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by


virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall
be transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection Commission may
ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen
hundred and eighty.

(SGD.) FERDINAND
E. MARCOS

Preside
nt

Republic of the
Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13,
1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation
of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the
2
constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity.

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial
court, ** and he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is
that the penalty is invalid because it is imposed without according the owner a right to be heard
before a competent and impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as constitutional. There is also a
challenge to the improper exercise of the legislative power by the former President under
Amendment No. 6 of the 1973 Constitution. 4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable
here. The question raised there was the necessity of the previous publication of the measure in the
Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis
of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution
to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may
provide," final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made
in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any
means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity,
and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to
recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they
should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of
the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of
his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his
judgment there existed a grave emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase that will lead to
protracted discussion not really necessary at this time, we reserve resolution of this matter until a
more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question
of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and
the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,
Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient.
This was felt necessary because due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for all seasons and all persons.
Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was
meant to make it adapt easily to every situation, enlarging or constricting its protection as the
changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process
lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave
the import of the protection open-ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter
of the U.S. Supreme Court, for example, would go no farther than to define due process — and in so doing sums it all up — as nothing more
and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that
Crown would thenceforth not proceed against the life liberty or property of any of its subjects except
by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their
progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn
vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a
ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern
visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear
"the other side" before an opinion is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the arrow, in leading to
the correct ruling after examination of the problem not from one or the other perspective only but in
its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of
the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and
empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a
number of admitted exceptions. The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human experience or there is a rational
connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad
dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic
materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous
judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both
restraints and is restrained by due process. The police power is simply defined as the power
inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By
reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even
so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A,
amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except
under certain conditions. The original measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for
the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need
for such a measure. In the face of the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would have been remiss, indeed, if it
had not taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding
and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by
farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in
their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals.
The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows:

To justify the State in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of
a particular class, require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. ...

From what has been said, we think it is clear that the enactment of the provisions of
the statute under consideration was required by "the interests of the public generally,
as distinguished from those of a particular class" and that the prohibition of the
slaughter of carabaos for human consumption, so long as these animals are fit for
agricultural work or draft purposes was a "reasonably necessary" limitation on private
ownership, to protect the community from the loss of the services of such animals by
their slaughter by improvident owners, tempted either by greed of momentary gain,
or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor
man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for
the purpose sought to be achieved and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where
they are at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original
executive order, we cannot say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that to strengthen the original measure,
Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on
their movement, providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it
could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of
the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow
that there is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still
have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty
is outright confiscation of the carabao or carabeef being transported, to be meted out by the
executive authorities, usually the police only. In the Toribio Case, the statute was sustained because
the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed,
and the property being transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were
returned to the petitioner only after he had filed a complaint for recovery and given
a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the
carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the
petitioner and immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be heard, thus
denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly
dispensed with notwithstanding the usual requirement for these minimum guarantees of due
process. It is also conceded that summary action may be validly taken in administrative proceedings
as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted,
however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of
the problem sought to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioner's
peremptory treatment. The properties involved were not even inimical per se as to require their
instant destruction. There certainly was no reason why the offense prohibited by the executive order
should not have been proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been
pronounced not by the police only but by a court of justice, which alone would have had the authority to
impose the prescribed penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated
property as prescribed in the questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other similar institutions as the Chairman
of the National Meat Inspection Commissionmay see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industrymay see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption.
One searches in vain for the usual standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make their distribution. There is none. Their
options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can supply the answer, they and they
alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there
is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that
keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative
powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power
because the method employed to conserve the carabaos is not reasonably necessary to the purpose
of the law and, worse, is unduly oppressive. Due process is violated because the owner of the
property confiscated is denied the right to be heard in his defense and is immediately condemned
and punished. The conferment on the administrative authorities of the power to adjudge the guilt of
the supposed offender is a clear encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to
the officers mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A
unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated
the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance
with its mandate. The law was at that time presumptively valid, and it was his obligation, as a
member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate
of the President, to declare the executive order unconstitutional and, on his own responsibility alone,
refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them,
this case would never have reached us and the taking of his property under the challenged measure
would have become afait accompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate and another violation
of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest,
and soon forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to
invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of
protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if
they are kept bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed
above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento
and Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.

Footnotes

1 Rollo, pp. 7, 28, 29, 34.

2 Ibid, pp. 6-7; Annex B.

* Justices Coquia, Bartolome and Ejercito.

3 Rollo, pp. 6, 27, 33.

** Judge Bethel Katalbas-Moscardon.

4 Ibid., pp. 10; 11, 14-16, 76.

5 129 SCRA 174.

6 Espiritu vs. Fugoso, 81 Phil. 637.

7 Sec. 5[2(a)], Art. X, 1973 Constitution; Sec. 5[2(a)], Art.VIII, 1987 Constitution.

8 J. Laurel, concurring opinion, Zandueta v. dela Costa, 66 Phil. 615, 627.


9 US v. Bustos, 37 Phil. 731.

10 I Aruego, The Framing of the Constitution (1936), pp. 153-159.

11 Twinning vs. New Jersey, 211 U.S. 78.

12 Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33.

13 David vs. Aquilizan, 94 SCRA 707; Montemayor vs. Araneta Univ. Foundation, 77
SCRA 321; Lentelera vs. Amores, 70 SCRA 37; Flores vs. Buencamino, 74 SCRA
332; DBP vs. Bautista, 26 SCRA 366; Ong Su Han vs. Gutierrez David, 76 Phil. 546;
Banco-Espanol Filipino vs. Palanca, 37 Phil. 921.

14 Dartmouth College vs. Woodward, 4 Wheaton 518.

15 Manley v. Georgia, 279 U.S. 1; 1 Cooley 639.

16 Suntay vs. People, 101 Phil. 833.

17 12 C.J. 1224.

18 People v. Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel Operators Ass.
v. City Mayor, 20 SCRA 849; Primicias v. Fugoso 80 Phil. 75; U.S. v. Ling Su Tan, 10
Phil. 114; Collins v. Wolfe 5 Phil. 297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v.
Rafferty 32 Phil. 603.

19 15 Phil. 85.

20 New Filipino Maritime Agencies, Inc. vs. Rivera, 83 SCRA 602; Gas Corp. of the
Phil. vs. Inciong93 SCRA 653.

21 supra.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,


vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,


vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26 There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national


spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to whichfull discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court 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 government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.1âwphi1.nêt

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 TheMalolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively."These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen.For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner


Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of"dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact.According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.
According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'


I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."
That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES


TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former


President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended


their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of


national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is


divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to


unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.


Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO


Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S


NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate


Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true


statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of


Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO


Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President


Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S


NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate


Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.


President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO


Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS


OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.


President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO


Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; andsecond, he enjoys immunity from all kinds of suit, whether criminal or
civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was
xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1
Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2
PDI, October 6, 2000, pp. A1 and A18.

3
Ibid., October 12, 2000, pp. A1 and A17.

4
Ibid., October 14, 2000, p. A1.

5
Ibid., October 18, 2000, p. A1.

6
Ibid., October 13, 2000, pp. A1 and A21.

7
Ibid., October 26, 2000, p. A1.

8
Ibid., November 2, 2000, p. A1.

9
Ibid., November 3, 2000, p. A1.

10
Ibid., November 4, 2000, p. A1.

11
The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12
Ibid., November 14, 2000, p. A1.

13
Ibid., November 21, 2000, p. A1.

14
Ibid., December 8, 2000, p. A1.

15
Ibid., December 23, 2000, pp. A1 and A19.

16
Ibid., January 12, 2001, p. A1.
17
Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18
Philippine Star, January 17, 2001, p. 1.

19
Ibid., January 18, 2001, p. 4.

20
Ibid., p. 1.

21
Ibid., January 19, 2001, pp. 1 and 8.

22
"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
PDI, February 4, 2001, p. A16.

23
Philippine Star, January 20, 2001, p. 4.

24
PDI, February 4, 2001, p. A16.

25
Philippine Star, January 20, 2001, pp. 1 and 11.

26
Ibid., January 20, 2001, p. 3.

27
PDI, February 5, 2001, pp. A1 and A6.

28
Philippine Star, January 21, 2001, p. 1.

29
PDI, February 6, 2001, p. A12.

30
Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31
Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32
Ibid.

33
Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34
Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

35
Philippine Star, January 24, 2001, p. 1.

36
PDI, January 25, 2001, p. 1.

37
Ibid., p. 2.

38
Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39
Annex D, id; ibid., p. 292.
40
PDI, January 27, 2001, p. 1.

41
PDI, February 13, 2001, p. A2.

42
Philippine Star, February 13, 2001, p. A2.

43
Annex E, id.; ibid., p. 295.

44
PDI, February 8, 2001, pp. A1 & A19.

45
Annex F, id.; ibid., p. 297.

46
PDI, February 10, 2001, p. A2.

47
Annex G, id.; ibid., p. 299.

48
PDI, February 8, 2001, p. A19.

49
Philippine Star, February 3, 2001, p. 4.

50
"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,
2001, p. 14.

51
See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52
See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-
125.

53
Rollo, G.R. No. 146738, p. 134.

54
Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55
Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56
369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57
See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58
103 Phil 1051, 1068 (1957).

59
Section 1, Article VIII, 1987 Constitution.
60
Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

61
Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62
Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63
Proclamation No. 3 (1986).

64
It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65
See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.

66
The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance."

67
See section 8, Article IV.

68
See section 9, Article IV.

69
Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70
Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said "… the greatest menace to freedom is an inert people …"

71
307 US 496 (1939).

72
Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73
260 SCRA 798 (1996).

74
Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."
75
Infra at 26.

76
Infra at 41.

77
1 Cranch (5 US) 137, 2 L ed 60 (1803).

78
Gonzales v. Hernandez, 2 SCRA 228 (1961).

79
See its February 4, 5, and 6, 2001 issues.

80
PDI, February 4, 2001, p. A1.

81
Ibid.

82
Ibid.

83
Ibid.

84
Ibid.

85
Ibid.

86
PDI, February 5, 2001, p. A1.

87
Ibid., p. A-1.

88
Ibid.

89
PDI, February 5, 2001, P. A6.

90
PDI, February 6, 2001, p. A1.

91
In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary
Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

92
Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93
Id., May 9, 1959, p. 1988

94
Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95
Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96
House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:
"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of
the people is the voice of God" establishes the basis of her mandate on integrity and morality
in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business
sectors in fully supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration
of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97
11th Congress, 3rd Session (2001).

98
11th Congress, 3rd Session (2001).

99
Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100
11th Congress, 3rd Session (2001).

101
11th Congress, 3rd Session (2001).

102
103 Phil 1051, 1067 (1957).

103
Baker vs. Carr, supra at 686 headnote 29.

104
16 Phil 534 (1910).
105
The logical basis for executive immunity from suit was originally founded upon the idea
that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical, juncture, it was believed that allowing the
King to be sued in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution.
[J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon
v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as
demanding the executive's independence from the judiciary, so that the President should not
be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will
soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains from discouraging official excesses might be more
than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity,
the president would be disinclined to exercise decision-making functions in a manner that
might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity
of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106
62 Phil. L.J. 113 (1987).

107
See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108
Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109
Supra at 47.

110
Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111
145 SCRA 160 (1986).

112
128 SCRA 324 (1984).

113
In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114
Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115
418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).
116
457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117
520 U.S. 681 (1997).

118
See section 1, Art. XI of the 1987 Constitution.

119
See section 27, Art. II of the 1987 Constitution.

120
See, section 1, Art. XI of the 1987 Constitution.

121
See section 15, Art. XI of the 1987 Constitution.

122
See section 4, Art. XI of the 1987 Constitution.

123
See section 13 (1), Art. XI of the 1987 Constitution.

124
See section 14, Art. XI of the 1987 Constitution.

125
See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126
Id., p. 1417.

127
See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
249 SCRA 54 (1995)

128
249 SCRA 54 (1955)

129
287 SCRA 581 at pp. 596-597 (1998)

130
247 SCRA 652 (1995)

131
Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132
Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134
See section 4, Rule 112.

135
Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could
have been one innocuous phenomenon buried in the pages of our history but for its critical
dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is
asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?
To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph
Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million
Filipinos in the elections of May 1998, served well over two years until January 2001. Formally
impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery,
Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be
removed from office and face prosecution with the regular courts or, if acquitted, he would remain in
office. An evidence, however, presented by the prosecution tagged as the "second envelope" would
have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope
opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year
rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering
swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for
him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but
beleaguered by solitude-empty of the support by the military and the police, abandoned most of his
cabinet members, and with hardly any firm succor from constituents. And despite the alleged
popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo,
then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a
letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent disability to
govern the serve his unexpired term. Almost all of his cabinet members have resigned and the
Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has
likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief
Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City,
Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was seen to be functioning. As the
hours passed, however, the extremely volatile situation was getting more precarious by the minute,
and the combustible ingredients were all but ready to ignite. The country was faced with a
phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too
limitless to be explicitly contained and constrained by the limited words and phrases of the
constitution, directly sought to remove their president from office. On that morning of the 20th of
January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or
was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky
to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court
was left hardly with choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was issued following the en
banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to the Chief justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.

"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the worsening
situation at the time. It could not in conscience allow the high-strung emotions and passions of
EDSA to reach the gates of Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming.
The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to
prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise
of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was
still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the
Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in
case of death, permanent disability, removal from office, or resignation of the President,1secondly,
when the President of the Senate and the Speaker of the House of representatives his written declaration
that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives their
written declaration that the President is unable to discharge the powers and duties of his office, 3 the
latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the
above situations have occurred. The conditions for constitutional succession have not been met. He
states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes
his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the
case.

The pressing issue must now catapult to its end.


Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by an act of
relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has
not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his intention to
relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled
to discharge his duties, the embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to have the impeachment Court
allow the opening of the controversial envelope and to postpone his resignation until 24 January
2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the
following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day.
Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and
inutility in office – not so much by the confluence of events that forces him to step down the seat of
power in a poignant and teary farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

"I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions
those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it
were otherwise, when then would the disability last? Would it be when the confluent causes which
have brought about that disability are completely set in reverse? Surely, the idea fails to register well
to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In
its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency has been by the duly-
elected Vice-president of the Republic. The military and the police, down the line, have felt to be so
acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership, government activity and policies.11 "
The distinguished A.J. Milne makes a differentiation between constitutional political action and
a revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer to the different branches of
the government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the personalities
but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of
the legal order. The constitutionally-established government structures, embracing various offices
under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and
still other entities, including the Armed Forces of the Philippines and the Philippine National Police
and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore
the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a
living testament and memorial of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by
time, it grows and copes with the changing milieu. The framers of the constitution could not have
anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all facts that may come about
but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent.
The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to
be an enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the
vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot
frustrate the inevitable because there is an immense difference between legalism and justice. If only
to secure our democracy and to keep the social order – technicalities must give away. It has been
said that the real essence of justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the
ultimate development of social edifice.17 Anything else defeats the spirit and intent of the
Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control
of the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span
of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the
Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.
Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection
on our part. In this kind of arena, let us be assumed that we are not overcome by senseless
adventurism and opportunism. The country must not grow oblivious to the innate perils of people
power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that
which we may hold dear. 1âwphi1.nêt

1
Section 8, Article VII, 1987 Constitution

2
Section 11, 1st paragraph, Article VII, 1987 Constitution

3
Ibid., 2nd paragraph

4
Ortiz vs. Comelec, 162 SCRA 812

5
Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January
1998

6
Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7
"Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx
"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose
a situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment
to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."

(11 RECORDS, PP. 421-423)

8
Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9
Ibid.

10
Ibid.

11
Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE
QUARTERLY

12
Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
456 (1973)

13
Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
Law Journal, 390-391 (1971)

14
16 American Jurisprudence 2d.

15
State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16
John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17
Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

18
Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:
In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo.
In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito
Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is
merely acting President on account o the former's temporary disability. On the other hand, in G.R.
Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from
investigating charges of plunder, bribery, malversation of public funds, and graft and corruption
against petitioner Estrada on the theory that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo
contends that the matter is not justiciable because of "the virtual impossibility of undoing what has
been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the
events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In
support of this contention, respondent cites the following statements of this Court concerning the
Aquino government which it is alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de facto government but is in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.2

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."3

But the Aquino government was a revolutionary government which was established following the
overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the
subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm
the existence and authority of such government under which it is exercising judicial power.4 As
Melville Weston long ago put it, "the men who were judges under the old regime and the men who
are called to be judges under the new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the
Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of the new government. As the Court
said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong
forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in
the day to deny the force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is
precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the
Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk
about the fact that it was brought about by succession due to resignation or permanent disability of
petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest
for power Macapagal-Arroyo's government is the successful one and is now accepted by the people
and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in February
1986. There was no overthrow of the existing legal order and its replacement by a new one, no
nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that
case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President
Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate
gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session
and, followed by six senators, walked out of the session hall. The remaining senators then declared
the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting
president. The question was whether respondent Cuenco had been validly elected acting president
of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen.
Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the political
nature of the controversy, involving as it did an internal affair of a coequal branch of the government,
in the end this Court decided to intervene because of the national crisis which developed as a result
of the unresolved question of presidency of the Senate. The situation justifying judicial intervention
was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like
mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent
persons with well-known addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the
President of the Philippines. The situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but
to meet the challenge of the situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls
for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-
Arroyo's presidency similarly justify, in my view, judicial intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that
there is nothing else that can be done about the assumption into office of respondent Gloria
Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which,
once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the
tube. Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in
tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R.
No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office
of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these
cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of
law. In election cases, people accept the decisions of courts even if they be against the results as
proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as
far as the political question argument of respondents is anchored on the difficulty or impossibility of
devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the
Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts:

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been elected and qualified.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and
need not be recounted in great detail here. They began in October 2000 when allegations of wrong
doings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made
against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000,
petitioner was impeached by the House of Representatives and, on December 7, impeachment
proceedings were begun in the Senate during which more serious allegations of graft and corruption
against petitioner were made and were only stopped on January 16, 2001 when 11 senators,
sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a
result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out
and Senate President Aquilino Pimentel resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:

1. The decision immediately sent hundreds of Filipinos out into the streets, triggering
rallies that swelled into a massive four-day demonstration. But while anger was
apparent among the middle classes, Estrada, a master of the common touch, still
retained largely passive support among the poorest Filipinos. Citing that mandate
and exploiting the letter of the Constitution, which stipulates that a written resignation
be presented, he refused to step down even after all of the armed forced, the police
and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC
REVIEW, "More Power to The Powerful", id, at p. 18].
2. When an entire night passed without Estrada's resignation, tens of thousands of
frustrated protesters marched on Malacañang to demand that the president leave
office. An air force fighter jet and four military helicopters buzzed the palace to
remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC
REVIEW, supra, ibid].
3. While the television cameras were focused on the rallies – and the commentators
became lost in reveries about People Power revisited – behind-the-scenes
negotiations had been going on non-stop between military factions loyal to Estrada
and those who advocated a quick coup to depose the President. Chief of Staff Reyes
and Defense Secretary Mercado had made their fateful call to Estrada after luncheon
attended by all the top commanders. The officers agreed that renouncing Estrada
was the best course, in part because some commanders were urging more drastic
resolution. If the military did not come to a consensus, there loomed the possibility of
factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]
4. It finally took a controversial Supreme Court declaration that the presidency was
effectively vacant to persuade Estrada to pack up and move out to his family home in
Manila – still refusing to sign a letter of resignation and insisting that he was the legal
president [FAR EASTERN ECONOMIC REVIEW, "More Power to the
Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President
and the other to the Speaker of the House, indicating that he was unable to perform
the duties of his Office.13

To recall these events is to note the moral framework in which petitioner's fall from power took place.
Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who
under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem?
This can only happen because he had lost his moral authority as the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were
all televised and heard by millions of people throughout the length and breadth of this archipelago.
As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the Philippines and the Philippine National Police
withdrew their support of the President, while civil society announced its loss of trust and confidence
in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained
President only in name. Having lost the command of the armed forces and the national police, he
found Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in the
Constitution can be physical, mental or moral, rendering the President unable to exercise the powers
and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's
presidency:

The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired
of the red tape, the bureaucracy, the intrigue.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a counter-
attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a
corner – he is also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M.
of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled
but only temporarily unable to discharge the powers and duties of his office and therefore can only
be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11.
From this judgment that petitioner became permanently disabled because he had lost the public's
trust, I except extravagant claims of the right of the people to change their government. While Art. II,
§1 of the Constitution says that "sovereignty resides in the people and all government authority
emanates from them," it also says that "the Philippines is a democratic and republican state." This
means that ours is a representative democracy — as distinguished from a direct democracy — in
which the sovereign will of the people is expressed through the ballot, whether in an election,
referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide
for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right
to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious
reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of
Happiness — That to secure these Rights, Governments are instituted among Men, deriving their
just Powers from the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to
them shall seem most likely to effect their Safety and Happiness.Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient Causes; and
accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are
sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But
when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a
Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such
Government, and to provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative fact which enabled Vice-
President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis,
nay a vacuum, in the executive leadership which made the government rife for seizure by lawless
elements. The presidency was up for grabs, and it was imperative that the rule of succession in the
Constitution be enforced.

But who is to declare the President's permanent disability, petitioner asks? The answer was given by
petitioner himself when he said that he was already tired and wanted no more of popular
demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own
Executive Secretary declared that petitioner was not only in a corner but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during the
period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents,
namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The
Philippines had two presidents at that time for the simple reason that there were then two
governments — the de facto government established by Japan as belligerent occupant, of which
Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L.
Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a
recognized principle of international law.18 But today we have only one government, and it is the
one set up in the 1987 Constitution. Hence, there can only be one President.
Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is required
by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity attending the
investigation by the Ombudsman of the criminal charges against petitioner. The test in this
jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner
as a result of publicity. There has been no proof of this, and so I think this claim should simply be
dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice

Footnotes

1
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

2
Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746, May 22,
1986.

3
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4
Luther v. Borden, 7 How. 1 (1848).

5
Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6
50 SCRA 30 (1973).

7
104 SCRA ! (1981).

8
104 SCRA 59 (1981).

9
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10
83 Phil. 17 (1949).

11
83 Phil. At 76 (Perfecto, J., concurring).

12
Id. at 25-26 (concurring and dissenting).

13
Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14
Petition, G.R. No. 146738, p. 13.
15
Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6, 2001.

16
Id. (emphasis added).

17
Emphasis added.

18
Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285 (1945);
Laurel v. Misa, 77 Phil. 856 (1947).

19
See Martelino v. Alejandro, 32 SCRA 106 (1970).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23127 April 29, 1971

FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee,


vs.
PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants,
PHILIPPINE NATIONAL BANK, defendant-appellant.

Dionisio E. Moya for plaintiff-appellee.

Ramon B. de los Reyes for defendant-appellant.

FERNANDO, J.:

A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute
subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff
Francisco Serrano de Agbayani, now appellee, was able to obtain a favorable judgment in her suit
against defendant, now appellant Philippine National Bank, permanently enjoining the other
defendant, the Provincial Sheriff of Pangasinan, from proceeding with an extra-judicial foreclosure
sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer
enforceable, the prescriptive period having lapsed. There was thus a failure to sustain the defense
raised by appellant that if the moratorium under an Executive Order and later an Act subsequently
found unconstitutional were to be counted in the computation, then the right to foreclose the
mortgage was still subsisting. In arriving at such a conclusion, the lower court manifested a
tenacious adherence to the inflexible view that an unconstitutional act is not a law, creating no rights
and imposing no duties, and thus as inoperative as if it had never been. It was oblivious to the force
of the principle adopted by this Court that while a statute's repugnancy to the fundamental law
deprives it of its character as a juridical norm, its having been operative prior to its being nullified is a
fact that is not devoid of legal consequences. As will hereafter be explained, such a failing of the
lower court resulted in an erroneous decision. We find for appellant Philippine National Bank, and we
reverse.

There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from
defendant Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage
duly registered covering property described in T.C.T. No. 11275 of the province of Pangasinan. As of
November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July
13 of the same year, defendant instituted extra-judicial foreclosure proceedings in the office of
defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the loan remaining
unpaid. Plaintiff countered with his suit against both defendants on August 10, 1959, her main
allegation being that the mortgage sought to be foreclosed had long prescribed, fifteen years having
elapsed from the date of maturity, July 19, 1944. She sought and was able to obtain a writ of
preliminary injunction against defendant Provincial Sheriff, which was made permanent in the
decision now on appeal. Defendant Bank in its answer prayed for the dismissal of the suit as even
on plaintiff's own theory the defense of prescription would not be available if the period from March
10, 1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the subsequent legislative
act 2 extending the period of moratorium was declared invalid, were to be deducted from the computation
of the time during which the bank took no legal steps for the recovery of the loan. As noted, the lower
court did not find such contention persuasive and decided the suit in favor of plaintiff.

Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the
part of the lower court to adhere to the applicable constitutional doctrine as to the effect to be given
to a statute subsequently declared invalid.

1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter
an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the
source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to
the fundamental law once judicially declared results in its being to all intents and purposes a mere
scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the latter shall govern. Administrative or executive
acts, orders and regulations shall be valid only when they are not contrary to the laws of the
Constitution. 3 It is understandable why it should be so, the Constitution being supreme and paramount.
Any legislative or executive act contrary to its terms cannot survive.

Such a view has support in logic and possesses the merit of simplicity. It may not however be
sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be complied with. This is so as until
after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their positions. What could be more
fitting than that in a subsequent litigation regard be had to what has been done while such legislative
or executive act was in operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely
to reflect awareness that precisely because the judiciary is the governmental organ which has the
final say on whether or not a legislative or executive measure is valid, a period of time may have
elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be no recognition of
what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual existence of a statute, prior to
such a determination [of unconstitutionality], is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect
of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect
to particular relations, individual and corporate, and particular conduct, private and official." 4 This
language has been quoted with approval in a resolution inAraneta v. Hill 5 and the decision in Manila
Motor Co., Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar speaking for
the Court in Fernandez v. Cuerva and Co. 7

2. Such an approach all the more commends itself whenever police power legislation intended to
promote public welfare but adversely affecting property rights is involved. While subject to be
assailed on due process, equal protection and non-impairment grounds, all that is required to avoid
the corrosion of invalidity is that the rational basis or reasonableness test is satisfied. The legislature
on the whole is not likely to allow an enactment suffering, to paraphrase Cardozo, from the infirmity
of out running the bounds of reason and resulting in sheer oppression. It may be of course that if
challenged, an adverse judgment could be the result, as its running counter to the Constitution could
still be shown. In the meanwhile though, in the normal course of things, it has been acted upon by
the public and accepted as valid. To ignore such a fact would indeed be the fruitful parent of
injustice. Moreover, as its constitutionality is conditioned on its being fair or reasonable, which in turn
is dependent on the actual situation, never static but subject to change, a measure valid when
enacted may subsequently, due to altered circumstances, be stricken down.

That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation,
which continued Executive Order No. 32, issued by the then President Osmeña, suspending the
enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it
was explicitly held in Rutter v. Esteban 8where such enactment was considered in 1953 "unreasonable
and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be
declared null and void and without effect." 9 At the time of the issuance of the above Executive Order in
1945 and of the passage of such Act in 1948, there was a factual justification for the moratorium. The
Philippines was confronted with an emergency of impressive magnitude at the time of her liberation from
the Japanese military forces in 1945. Business was at a standstill. Her economy lay prostrate. Measures,
radical measures, were then devised to tide her over until some semblance of normalcy could be restored
and an improvement in her economy noted. No wonder then that the suspension of enforcement of
payment of the obligations then existing was declared first by executive order and then by legislation. The
Supreme Court was right therefore in rejecting the contention that on its face, the Moratorium Law was
unconstitutional, amounting as it did to the impairment of the obligation of contracts. Considering the
circumstances confronting the legitimate government upon its return to the Philippines, some such
remedial device was needed and badly so. An unyielding insistence then on the rights to property on the
part of the creditors was not likely to meet with judicial sympathy. Time passed however, and conditions
did change.

When the legislation was before this Court in 1953, the question before it was its satisfying the
rational basis test, not as of the time of its enactment but as of such date. Clearly, if then it were
found unreasonable, the right to non-impairment of contractual obligations must prevail over the
assertion of community power to remedy an existing evil. The Supreme Court was convinced that
such indeed was the case. As stated in the opinion of Justice Bautista Angelo: "But we should not
lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance
of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the
enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year
period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in
plain language means that the creditors would have to observe a vigil of at least twelve (12) years
before they could affect a liquidation of their investment dating as far back as 1941. This period
seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should
be commended, the relief accorded works injustice to creditors who are practically left at the mercy
of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are
unsecured. And the injustice is more patent when, under the law the debtor is not even required to
pay interest during the operation of the relief, unlike similar statutes in the United States. 10 The
conclusion to which the foregoing considerations inevitably led was that as of the time of adjudication, it
was apparent that Republic Act No. 342 could not survive the test of validity. Executive Order No. 32
should likewise be nullified. That before the decision they were not constitutionally infirm was admitted
expressly. There is all the more reason then to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal
consequences are attached.

3. Precisely though because of the judicial recognition that moratorium was a valid governmental
response to the plight of the debtors who were war sufferers, this Court has made clear its view in a
series of cases impressive in their number and unanimity that during the eight-year period that
Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. So it has
been held from Day v. Court of First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is deplorable is
that as of the time of the lower court decision on January 27, 1960, at least eight decisions had left no
doubt as to the prescriptive period being tolled in the meanwhile prior to such adjudication of
invalidity. 13 Speaking of the opposite view entertained by the lower court, the present Chief Justice,
in Liboro v. Finance and Mining Investments Corp. 14 has categorized it as having been "explicitly and
consistently rejected by this Court." 15

The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when
her loan matured, to July 13, 1959, when extra-judicial foreclosure proceedings were started by
appellant Bank, the time consumed is six days short of fifteen years. The prescriptive period was
tolled however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953,
when the decision of Rutter v. Esteban was promulgated, covering eight years, two months and
eight days. Obviously then, when resort was had extra-judicially to the foreclosure of the mortgage
obligation, there was time to spare before prescription could be availed of as a defense.

WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10,
1959 dismissed. No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor,
and Makasiar, JJ., concur.

Footnotes

1 Under Executive Order No. 32 providing for a debt moratorium, it was specifically
stated: "Enforcement of payment of all debts and other monetary obligations payable
within the Philippines, except debts and other monetary obligations entered into in
any area after declaration by Presidential Proclamation that such area has been
freed from enemy occupation and control, is temporarily suspended pending action
by the Commonwealth Government." Executive Order No. 32 was issued on March
10, 1945. Executive Order No. 32 amended Executive Order No. 25 (1944).

2 According to the declaration of policy in Republic Act No. 342 (1948), Executive
Order No. 32 remains in full force and effect for the war sufferers as for them the
emergency created by the last war was still existent. Then came this specific
provision: "All debts and other monetary obligations payable by private parties within
the Philippines originally incurred or contracted before December 8, 1941, and still
remaining unpaid, any provision or provisions in the contract creating the same or in
any subsequent agreement affecting such obligation to the contrary notwithstanding,
shall not be due and demandable for a period of eight (8) years from and after
settlement of the war damage claim of the debtor by the United States Philippine War
Damage Commission, without prejudice, however, to any voluntary agreement which
the interested parties may enter into after the approval of this Act for the settlement
of said obligations."
Sec. 2.

3 ART. 7. In the classic language of Justice Field: "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." Norton
v. Shelly County, 118 US 425 (1886).

4 Chicot County Drainage Dist. v. Baxter States Bank 308 US 371, 374 (1940).

5 93 Phil. 1002 (1953).


6 99 Phil. 738 (1956).

7 L-21114, Nov. 28, 1967, 21 SCRA 1095.

8 93 Phil. 68 (1953). Rutter v. Esteban was subsequently cited in the following cases:
Araneta v. Hill, 93 Phil. 1002 (1953); Londres v. National Life Insurance Co., 94 Phil.
627 (1954); Dizon v. Ocampo, 94 Phil. 803 (1954); De Leon v. Ibañez, 95 Phil. 119
(1954); Picornell and Co. v. Cordovan 95 Phil. 632 (1954); Berg v. Teus, 96 Phil. 102
(1954); Herrera v. Arellano, 97 Phil. 776 (1955); Chua Lamko v. Dioso, 97 Phil. 821
(1955); Rio y Cia v. Sandoval, 100 Phil. 407 (1956); Gonzaga v. Rehabilitation
Finance Corp., 100 Phil. 892 (1957); Pacific Commercial Co. v. Aquino, 100 Phil. 961
(1957); Bachrach motor Co., Inc. v. Chua Tua Hian, 101 Phil. 194 (1957); Liboro v.
Finance and Mining Investment Corp., 102 Phil. 489 1957); Rio y Compania v.
Jolkipli 105 Phil. 447 (1959); People v. Jolliffe 105 Phil. 677 (1959); Uy Hoo and Co.,
Inc. v. Tan, 105 Phil. 717 (1959); Compania Maritima v. Court of Appeals and Libby,
McNeill and Libby (Phil.), Inc., 108 Phil. 469 (1960).

9 Ibid., p. 82. The same conclusion obtains in the opinion of the Court as regards
Executive Order No. 32.

10 Ibid., p. 77.

11 94 Phil. 816.

12 L-24137, January 30, 1970, 31 SCRA 219, citing Republic v. Grijaldo, L-20240,
December 31, 1965, 15 SCRA 681; Republic v. Rodriguez, L-18967, January 31,
1966, 16 SCRA 53; Nielson and Co., Inc. v. Lepanto Consolidated Mining Co., L-
21601, December 28, 1968, 26 SCRA 540.

13 Day v. Court of First Instance of Tarlac, 94 Phil. 816 (1954); Montilla v. Pacific
Commercial Company, 98 Phil. 133 (1955); Pacific Commercial Co. v. Aquino, 100
Phil. 961 (1957); Bachrach Motor Co., Inc. v. Chua Tua Tian 101 Phil. 184 (1957);
Liboro v. Finance and Mining Investment Corp., 102 Phil. 489 (1957); Rio y
Compania v. Jolkipli, 105 Phil. 447 (1959); People v. Jollifee, 105 Phil. 677 (1959) ;
Uy Hoo & Co., Inc. v. Tan, 105 Phil. 716 (1959).

14 102 Phil. 489 (1957).

15 Ibid., p. 493.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,


vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City,
in a sworn statement filed with the Philippine Overseas Employment Administration
(POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at


nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay


ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang


panloloko sa
iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako.


Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said


complaint was assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE


MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM
ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST
YOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate
a recruitment agency, public respondent Administrator Tomas D. Achacoso issued
his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and


Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the


New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under


existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B.
Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio
Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure
and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong
policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of
News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into
the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.). However, when required to show
credentials, she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers — practicing a dance number and saw about twenty
more waiting outside, The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last January
26, 1988 be immediately returned on the ground that said seizure was contrary to
law and against the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees right of the people "to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent
and were done with unreasonable force and intimidation, together
with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.

Unless said personal properties worth around TEN THOUSAND


PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to
protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with the
Pasig Provincial Fiscal, docketed as IS-88-836. 1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.

Under the new Constitution, which states:


. . . no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that
mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the person or
things to be seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis
thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants
and indeed, warrants of arrest, is to make him both judge and jury in his own right,
when he is neither. That makes, to our mind and to that extent, Presidential Decree
No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power
to recommend the arrest and detention of any person engaged in illegal
recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose
of giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of
Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest
and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national security
and public order or will lead to further exploitation of job-seekers. The Minister shall
order the closure of companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or non-
holder of authority if after investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further exploitation of job-
seekers. The Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found
to be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so.8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37
of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien)
ordered by the President or his duly authorized representatives, in order to carry out a final decision of
deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in
matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that when
the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued presence is
detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam
vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It
(the power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was
validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and


Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the


New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment,


typewriters, cabinets, tables, communications/ recording equipment,
tape recorders, dictaphone and the like used and/or connected in the
printing of the "WE FORUM" newspaper and any and all
documents/communications, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other


publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE


FORUM" and other subversive materials and propaganda, more
particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;


2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a
general warrant, and therefore invalid. The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic
and Puritan." Reference herein to such historical episode would not be relevant for it
is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to
state security.14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other,
who may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom


the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Footnotes

1 Rollo, 19-24; emphases in the original.

2 CONST., art. III, sec. 2.

3 See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647; Presidential
Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989.

4 Ponsica, supra, 662-663.

5 Presidential Anti-Dollar Salting Task Force, supra, 21.

6 Pres. Decree No. 1693, "FURTHER AMENDING ARTICLE 38 OF THE LABOR


CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC
SABOTAGE."

7 Supra, sec. 1.

8 Pres. Decree No. 2018, "FURTHER AMENDING ARTICLES 38 AND 39 OF THE


LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC
SABOTAGE AND PUNISHABLE WITH IMPRISONMENT."

9 No. L-22196, June 30, 1967, 20 SCRA 562.

10 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9 SCRA
27; Vivo v. Montesa, No. L-24576, 24 SCRA 155.

11 Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.

12 Supra, 21-22.

13 Rollo, id., 15.

14 Burgos, Sr. v. Chief of Staff, AFP No. 64261, December 26, 1984, 133 SCRA
800, 814-816.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 176951 February 15, 2011

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National President Jerry P.
Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in
his personal capacity as Taxpayer,Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Baybay, Province of Leyte; Municipality of Bogo,
Province of Cebu; Municipality of Catbalogan, Province of Western Samar; Municipality of
Tandag, Province of Surigao del Sur; Municipality of Borongan, Province of Eastern Samar; and
Municipality of Tayabas, Province of Quezon, Respondents.

x – - – - – - – - – - – - – - – - – - – - – - -x

G.R. No. 177499

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National President Jerry P.
Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in
his personal capacity as Taxpayer,Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of Basilan; Municipality of
Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur; Municipality of
Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao Oriental; and Municipality
of Guihulngan, Province of Negros Oriental, Respondents.

x – - – - – - – - – - – - – - – - – - – - – - -x

G.R. No. 178056

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National President Jerry P.
Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in
his personal capacity as Taxpayer,Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del Norte;
Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of Misamis
Oriental; Municipality of Naga, Cebu; and Department of Budget and Management, Respondents.

RESOLUTION

BERSAMIN, J.:

For consideration of this Court are the following pleadings:

1. Motion for Reconsideration of the “Resolution” dated August 24, 2010 dated and filed on September
14, 2010 by respondents Municipality of Baybay, et al.; and

2. Opposition [To the "Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010"].
Meanwhile, respondents also filed on September 20, 2010 a Motion to Set “Motion for Reconsideration of
the ‘Resolution’ dated August 24, 2010″ for Hearing. This motion was, however, already denied by the
Court En Banc.

A brief background—

These cases were initiated by the consolidated petitions for prohibition filed by the League of Cities of the
Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treñas, assailing the constitutionality of the
1
sixteen (16) laws, each converting the municipality covered thereby into a component city (Cityhood
Laws), and seeking to enjoin the Commission on Elections (COMELEC) from conducting plebiscites
pursuant to the subject laws.

2
In the Decision dated November 18, 2008, the Court En Banc, by a 6-5 vote, granted the petitions and
struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6, Article X, and the
equal protection clause.

3
In the Resolution dated March 31, 2009, the Court En Banc, by a 7-5 vote, denied the first motion for
reconsideration.

4
On April 28, 2009, the Court En Banc issued a Resolution, with a vote of 6-6, which denied the second
motion for reconsideration for being a prohibited pleading.

In its June 2, 2009 Resolution, the Court En Banc clarified its April 28, 2009 Resolution in this wise—

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of
the Rules of Civil Procedure which provides that: “No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained.” Thus, a decision becomes final and executory
after 15 days from receipt of the denial of the first motion for reconsideration.

However, when a motion for leave to file and admit a second motion for reconsideration is granted by the
Court, the Court therefore allows the filing of the second motion for reconsideration. In such a case, the
second motion for reconsideration is no longer a prohibited pleading.

In the present case, the Court voted on the second motion for reconsideration filed by respondent cities.
In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion
for reconsideration was no longer a prohibited pleading. However, for lack of the required number of
votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the
5
second motion for reconsideration in its 28 April 2009 Resolution.

6
Then, in another Decision dated December 21, 2009, the Court En Banc, by a vote of 6-4, declared the
Cityhood Laws as constitutional.

7
On August 24, 2010, the Court En Banc, through a Resolution, by a vote of 7-6, resolved the Ad
Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009, both filed
by petitioners, and the Ad Cautelam Motion for Reconsideration filed by petitioners-in-intervention
Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City, reinstating the
November 18, 2008 Decision. Hence, the aforementioned pleadings.

Considering these circumstances where the Court En Banc has twice changed its position on the
constitutionality of the 16 Cityhood Laws, and especially taking note of the novelty of the issues involved
in these cases, the Motion for Reconsideration of the “Resolution” dated August 24, 2010 deserves
favorable action by this Court on the basis of the following cogent points:
1.

The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution.

Article X, Section 10 provides—

Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.

The tenor of the ponencias of the November 18, 2008 Decision and the August 24, 2010 Resolution is
that the exemption clauses in the 16 Cityhood Laws are unconstitutional because they are not written in
the Local Government Code of 1991 (LGC), particularly Section 450 thereof, as amended by Republic Act
(R.A.) No. 9009, which took effect on June 30, 2001, viz.—

Section 450. Requisites for Creation. –a) A municipality or a cluster of barangays may be converted into a
component city if it has a locally generated annual income, as certified by the Department of Finance, of
at least One Hundred Million Pesos (P100,000,000.00) for at least two (2) consecutive years based on
2000 constant prices, and if it has either of the following requisites:

xxxx

(c) The average annual income shall include the income accruing to the general fund, exclusive of special
funds, transfers, and non-recurring income. (Emphasis supplied)

Prior to the amendment, Section 450 of the LGC required only an average annual income, as certified by
the Department of Finance, of at least P20,000,000.00 for the last two (2) consecutive years, based on
1991 constant prices.

Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by Senator Aquilino Pimentel, there
were 57 bills filed for conversion of 57 municipalities into component cities. During the 11th Congress
(June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained as pending bills.
Among these 24 were the 16 municipalities that were converted into component cities through the
Cityhood Laws.

The rationale for the enactment of R.A. No. 9009 can be gleaned from the sponsorship speech of Senator
Pimentel on Senate Bill No. 2157, to wit—

Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed
amendments that we have introduced to precisely amend the Local Government Code. However, it is a
fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when
the Local Government was approved, there were only 60 cities, today the number has increased to 85
cities, with 41 more municipalities applying for conversion to the same status. At the rate we are going, I
am apprehensive that before long this nation will be a nation of all cities and no municipalities.

It is for that reason, Mr. President, that we are proposing among other things, that the financial
requirement, which, under the Local Government Code, is fixed at P20 million, be raised to P100 million
to enable a municipality to have the right to be converted into a city, and the P100 million should be
sourced from locally generated funds.
What has been happening, Mr. President, is, the municipalities aspiring to become cities say that they
qualify in terms of financial requirements by incorporating the Internal Revenue share of the taxes of the
nation on to their regularly generated revenue. Under that requirement, it looks clear to me that practically
all municipalities in this country would qualify to become cities.

It is precisely for that reason, therefore, that we are seeking the approval of this Chamber to amend,
particularly Section 450 of Republic Act No. 7160, the requisite for the average annual income of a
municipality to be converted into a city or cluster of barangays which seek to be converted into a city,
raising that revenue requirement from P20 million to P100 million for the last two consecutive years based
8
on 2000 constant prices.

While R.A. No. 9009 was being deliberated upon, Congress was well aware of the pendency of
conversion bills of several municipalities, including those covered by the Cityhood Laws, desiring to
become component cities which qualified under the P20 million income requirement of the old Section
450 of the LGC. The interpellation of Senate President Franklin Drilon of Senator Pimentel is revealing,
thus—

THE PRESIDENT. The Chair would like to ask for some clarificatory point.

SENATOR PIMENTEL. Yes, Mr. President.

THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the
conversion of a number of municipalities into cities and which qualify under the present standard.

We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber
apply the standard as proposed in this bill to those bills which are pending for consideration?

SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill, on the assumption that it is
approved, retroact to the bills that are pending in the Senate conversion from municipalities to cities.

THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not
become a policy of the Chamber, assuming that this bill becomes a law tomorrow, that it will apply to
those bills which are already approved by the House under the old version of the Local Government Code
and are now pending in the Senate? The Chair does not know if we can craft a language which will limit
the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt?

SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision
because what we are saying here will form part of the interpretation of this bill. Besides, if there is no
retroactivity clause, I do not think that the bill would have any retroactive effect.

THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will
not be affected.

SENATOR PIMENTEL. These will not be affected, Mr. President.

9
THE PRESIDENT. Thank you Mr. Chairman.

Clearly, based on the above exchange, Congress intended that those with pending cityhood bills during
the 11th Congress would not be covered by the new and higher income requirement of P100 million
imposed by R.A. No. 9009. When the LGC was amended by R.A. No. 9009, the amendment carried with
it both the letter and the intent of the law, and such were incorporated in the LGC by which the
compliance of the Cityhood Laws was gauged.
Notwithstanding that both the 11th and 12th Congress failed to act upon the pending cityhood bills, both
the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were carried on until the
13th Congress, when the Cityhood Laws were enacted. The exemption clauses found in the individual
Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the
coverage of R.A. No. 9009.

Even if we were to ignore the above quoted exchange between then Senate President Drilon and Senator
Pimentel, it cannot be denied that Congress saw the wisdom of exempting respondent municipalities from
complying with the higher income requirement imposed by the amendatory R.A. No. 9009. Indeed, these
municipalities have proven themselves viable and capable to become component cities of their respective
provinces. It is also acknowledged that they were centers of trade and commerce, points of convergence
of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism
spots. In this regard, it is worthy to mention the distinctive traits of each respondent municipality, viz—

Batac, Ilocos Norte – It is the biggest municipality of the 2nd District of Ilocos Norte, 2nd largest and most
progressive town in the province of Ilocos Norte and the natural convergence point for the neighboring
towns to transact their commercial ventures and other daily activities. A growing metropolis, Batac is
equipped with amenities of modern living like banking institutions, satellite cable systems,
telecommunications systems. Adequate roads, markets, hospitals, public transport systems, sports, and
entertainment facilities. [Explanatory Note of House Bill No. 5941, introduced by Rep. Imee R. Marcos.]

El Salvador, Misamis Oriental – It is located at the center of the Cagayan-Iligan Industrial Corridor and
home to a number of industrial companies and corporations. Investment and financial affluence of El
Salvador is aptly credited to its industrious and preserving people. Thus, it has become the growing
investment choice even besting nearby cities and municipalities. It is home to Asia Brewery as distribution
port of their product in Mindanao. The Gokongwei Group of Companies is also doing business in the
area. So, the conversion is primarily envisioned to spur economic and financial prosperity to this coastal
place in North-Western Misamis Oriental. [Explanatory Note of House Bill No. 6003, introduced by Rep.
Augusto H. Bacullo.]

Cabadbaran, Agusan del Norte – It is the largest of the eleven (11) municipalities in the province of
Agusan del Norte. It plays strategic importance to the administrative and socio-economic life and
development of Agusan del Norte. It is the foremost in terms of trade, commerce, and industry. Hence,
the municipality was declared as the new seat and capital of the provincial government of Agusan del
Norte pursuant to Republic Act No. 8811 enacted into law on August 16, 2000. Its conversion will
certainly promote, invigorate, and reinforce the economic potential of the province in establishing itself as
an agro-industrial center in the Caraga region and accelerate the development of the area. [Explanatory
Note of House Bill No. 3094, introduced by Rep. Ma. Angelica Rosedell M. Amante.]

Borongan, Eastern Samar – It is the capital town of Eastern Samar and the development of Eastern
Samar will depend to a certain degree of its urbanization. It will serve as a catalyst for the modernization
and progress of adjacent towns considering the frequent interactions between the populace. [Explanatory
Note of House Bill No. 2640, introduced by Rep. Marcelino C. Libanan.]

Lamitan, Basilan – Before Basilan City was converted into a separate province, Lamitan was the most
progressive part of the city. It has been for centuries the center of commerce and the seat of the
Sultanate of the Yakan people of Basilan. The source of its income is agro-industrial and others notably
copra, rubber, coffee and host of income generating ventures. As the most progressive town in Basilan,
Lamitan continues to be the center of commerce catering to the municipalities of Tuburan, Tipo-Tipo and
Sumisip. [Explanatory Note of House Bill No. 5786, introduced by Rep. Gerry A. Salapuddin.]

Catbalogan, Samar – It has always been the socio-economic-political capital of the Island of Samar even
during the Spanish era. It is the seat of government of the two congressional districts of Samar. Ideally
located at the crossroad between Northern and Eastern Samar, Catbalogan also hosts trade and
commerce activates among the more prosperous cities of the Visayas like Tacloban City, Cebu City and
the cities of Bicol region. The numerous banks and telecommunication facilities showcases the healthy
economic environment of the municipality. The preeminent and sustainable economic situation of
Catbalogan has further boosted the call of residents for a more vigorous involvement of governance of
the municipal government that is inherent in a city government. [Explanatory Note of House Bill No. 2088,
introduced by Rep. Catalino V. Figueroa.]

Bogo, Cebu – Bogo is very qualified for a city in terms of income, population and area among others. It
has been elevated to the Hall of Fame being a five-time winner nationwide in the clean and green
program. [Explanatory Note of House Bill No. 3042, introduced by Rep. Clavel A. Martinez.]

Tandag, Surigao del Sur – This over 350 year old capital town the province has long sought its
conversion into a city that will pave the way not only for its own growth and advancement but also help in
the development of its neighboring municipalities and the province as a whole. Furthermore, it can
enhance its role as the province’s trade, financial and government center. [Explanatory Note of House Bill
No. 5940, introduced by Rep. Prospero A. Pichay, Jr.]

Bayugan, Agusan del Sur – It is a first class municipality and the biggest in terms of population in the
entire province. It has the most progressive and thickly populated area among the 14 municipalities that
comprise the province. Thus, it has become the center for trade and commerce in Agusan del Sur. It has
a more developed infrastructure and facilities than other municipalities in the province. [Explanatory Note
of House Bill No. 1899, introduced by Rep. Rodolfo "Ompong" G. Plaza.]

Carcar, Cebu – Through the years, Carcar metamorphosed from rural to urban and now boast of its
manufacturing industry, agricultural farming, fishing and prawn industry and its thousands of large and
small commercial establishments contributing to the bulk of economic activities in the municipality. Based
on consultation with multi-sectoral groups, political and non-government agencies, residents and common
folk in Carcar, they expressed their desire for the conversion of the municipality into a component city.
[Explanatory Note of House Bill No. 3990, introduced by Rep. Eduardo R. Gullas.]

Guihulngan, Negros Oriental – Its population is second highest in the province, next only to the provincial
capital and higher than Canlaon City and Bais City. Agriculture contributes heavily to its economy. There
are very good prospects in agricultural production brought about by its favorable climate. It has also the
Tanon Strait that provides a good fishing ground for its numerous fishermen. Its potential to grow
commercially is certain. Its strategic location brought about by its existing linkage networks and the major
transportation corridors traversing the municipality has established Guihulngan as the center of
commerce and trade in this part of Negros Oriental with the first congressional district as its immediate
area of influence. Moreover, it has beautiful tourist spots that are being availed of by local and foreign
tourists. [Explanatory Note of House Bill No. 3628, introduced by Rep. Jacinto V. Paras.]

Tayabas, Quezon – It flourished and expanded into an important politico-cultural center in [the] Tagalog
region. For 131 years (1179-1910), it served as the cabecera of the province which originally carried the
cabecera’s own name, Tayabas. The locality is rich in culture, heritage and trade. It was at the outset one
of the more active centers of coordination and delivery of basic, regular and diverse goods and services
within the first district of Quezon Province. [Explanatory Note of House Bill No. 3348, introduced by Rep.
Rafael P. Nantes.]

Tabuk, Kalinga – It not only serves as the main hub of commerce and trade, but also the cultural center of
the rich customs and traditions of the different municipalities in the province. For the past several years,
the income of Tabuk has been steadily increasing, which is an indication that its economy is likewise
progressively growing. [Explanatory Note of House Bill No. 3068, introduced by Rep. Laurence P.
Wacnang.]
Available information on Baybay, Leyte; Mati, Davao Oriental; and Naga, Cebu shows their economic
viability, thus:

Covering an area of 46,050 hectares, Baybay [Leyte] is composed of 92 barangays, 23 of which are in
the poblacion. The remaining 69 are rural barangays. Baybay City is classified as a first class city. It is
situated on the western coast of the province of Leyte. It has a Type 4 climate, which is generally wet. Its
topography is generally mountainous in the eastern portion as it slopes down west towards the shore line.
Generally an agricultural city, the common means of livelihood are farming and fishing. Some are
engaged in hunting and in forestall activities. The most common crops grown are rice, corn, root crops,
fruits, and vegetables. Industries operating include the Specialty Products Manufacturing, Inc. and the
Visayan Oil Mill. Various cottage industries can also be found in the city such as bamboo and rattan craft,
ceramics, dress-making, fiber craft, food preservation, mat weaving, metal craft, fine Philippine furniture
manufacturing and other related activities. Baybay has great potential as a tourist destination, especially
for tennis players. It is not only rich in biodiversity and history, but it also houses the campus of the
Visayas State University (formerly the Leyte State University/Visayas State College of Agriculture/Visayas
Agricultural College/Baybay National Agricultural School/Baybay Agricultural High School and the Jungle
Valley Park.) Likewise, it has river systems fit for river cruising, numerous caves for spelunking, forests,
beaches, and marine treasures. This richness, coupled with the friendly Baybayanos, will be an element
of a successful tourism program. Considering the role of tourism in development, Baybay City intends to
harness its tourism potential. (<http://en.wikipedia.org/wiki/Baybay City> visited September 19, 2008)

Mati [Davao Oriental] is located on the eastern part of the island of Mindanao. It is one hundred sixty-five
(165) kilometers away from Davao City, a one and a half-hour drive from Tagum City. Visitors can travel
from Davao City through the Madaum diversion road, which is shorter than taking the Davao-Tagum
highway. Travels by air and sea are possible, with the existence of an airport and seaport. Mati boasts of
being the coconut capital of Mindanao if not the whole country. A large portion of its fertile land is planted
to coconuts, and a significant number of its population is largely dependent on it. Other agricultural crops
such as mango, banana, corn, coffee and cacao are also being cultivated, as well as the famous Menzi
pomelo and Valencia oranges. Mati has a long stretch of shoreline and one can find beaches of pure,
powder-like white sand. A number of resorts have been developed and are now open to serve both local
and international tourists. Some of these resorts are situated along the coast of Pujada Bay and the
Pacific Ocean. Along the western coast of the bay lies Mt. Hamiguitan, the home of the pygmy forest,
where bonsai plants and trees grow, some of which are believed to be a hundred years old or more. On
its peak is a lake, called “Tinagong Dagat,” or hidden sea, so covered by dense vegetation a climber has
to hike trails for hours to reach it. The mountain is also host to rare species of flora and fauna, thus
becoming a wildlife sanctuary for these life forms. (<http://mati.wetpain.com/?t=anon> accessed on
September 19, 2008.)

Mati is abundant with nickel, chromite, and copper. Louie Rabat, Chamber President of the Davao
Oriental Eastern Chamber of Commerce and Industry, emphasized the big potential of the mining industry
in the province of Davao Oriental. As such, he strongly recommends Mati as the mining hub in the
Region.

(<http://www.pia.gov.ph/default.asp?m=12&sec=reader&rp=1&fi=p080115.htm&no.=9&date, accessed on
September 19, 2008)

Naga [Cebu]: Historical Background—In the early times, the place now known as Naga was full of huge
trees locally called as “Narra.” The first settlers referred to this place as Narra, derived from the huge
trees, which later simply became Naga. Considered as one of the oldest settlements in the Province of
Cebu, Naga became a municipality on June 12, 1829. The municipality has gone through a series of
classifications as its economic development has undergone changes and growth. The tranquil farming
and fishing villages of the natives were agitated as the Spaniards came and discovered coal in the
uplands. Coal was the first export of the municipality, as the Spaniards mined and sent it to Spain. The
mining industry triggered the industrial development of Naga. As the years progressed, manufacturing
and other industries followed, making Naga one of the industrialized municipalities in the Province of
Cebu.

Class of Municipality 1st class

Province Cebu

Distance from Cebu City 22 kms.

Number of Barangays 28

No. of Registered Voters 44,643 as of May 14, 2007

Total No. of Precincts 237 (as of May 14, 2007)

Ann. Income (as of Dec. 31, 2006) Php112,219,718.35 Agricultural, Industrial, Agro-Industrial, Mining
Product

(<http://www.nagacebu.com/index.php?option=com.content&view=article id=53:naga-facts-and-
figures&catid=51:naga-facts-and-figures&Itemid=75> visited September 19, 2008)

The enactment of the Cityhood Laws is an exercise by Congress of its legislative power. Legislative
10
power is the authority, under the Constitution, to make laws, and to alter and repeal them. The
Constitution, as the expression of the will of the people in their original, sovereign, and unlimited capacity,
has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is
broad, general, and comprehensive. The legislative body possesses plenary powers for all purposes of
civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed
by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects, and extends to matters
11
of general concern or common interest.

Without doubt, the LGC is a creation of Congress through its law-making powers. Congress has the
power to alter or modify it as it did when it enacted R.A. No. 9009. Such power of amendment of laws was
again exercised when Congress enacted the Cityhood Laws. When Congress enacted the LGC in 1991, it
provided for quantifiable indicators of economic viability for the creation of local government units—
income, population, and land area. Congress deemed it fit to modify the income requirement with respect
to the conversion of municipalities into component cities when it enacted R.A. No. 9009, imposing an
amount of P100 million, computed only from locally-generated sources. However, Congress deemed it
wiser to exempt respondent municipalities from such a belatedly imposed modified income requirement in
order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which
is countryside development and autonomy, especially accounting for these municipalities as engines for
economic growth in their respective provinces.

Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood Laws
amended R.A. No. 9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly
exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are,
therefore, also amendments to the LGC itself. For this reason, we reverse the November 18, 2008
Decision and the August 24, 2010 Resolution on their strained and stringent view that the Cityhood Laws,
particularly their exemption clauses, are not found in the LGC.

2.
The Cityhood Laws do not violate Section 6, Article X and the equal protection clause of the Constitution.

Both the November 18, 2008 Decision and the August 24, 2010 Resolution impress that the Cityhood
Laws violate the equal protection clause enshrined in the Constitution. Further, it was also ruled that
Section 6, Article X was violated because the Cityhood Laws infringed on the “just share” that petitioner
and petitioners-in-intervention shall receive from the national taxes (IRA) to be automatically released to
them.

Upon more profound reflection and deliberation, we declare that there was valid classification, and the
Cityhood Laws do not violate the equal protection clause.

As this Court has ruled, the equal protection clause of the 1987 Constitution permits a valid classification,
provided that it: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not
12
limited to existing conditions only; and (4) applies equally to all members of the same class.

The petitioners argue that there is no substantial distinction between municipalities with pending cityhood
bills in the 11th Congress and municipalities that did not have pending bills, such that the mere pendency
of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from
another for the purpose of the income requirement. This contention misses the point.

It should be recalled from the above quoted portions of the interpellation by Senate President Drilon of
Senator Pimentel that the purpose of the enactment of R.A. No 9009 was merely to stop the “mad rush of
municipalities wanting to be converted into cities” and the apprehension that before long the country will
be a country of cities and without municipalities. It should be pointed out that the imposition of the P100
million average annual income requirement for the creation of component cities was arbitrarily made. To
be sure, there was no evidence or empirical data, such as inflation rates, to support the choice of this
amount. The imposition of a very high income requirement ofP100 million, increased from P20 million,
was simply to make it extremely difficult for municipalities to become component cities. And to highlight
such arbitrariness and the absurdity of the situation created thereby, R.A. No. 9009 has, in effect, placed
component cities at a higher standing than highly urbanized cities under Section 452 of the LGC, to wit—

Section 452. Highly Urbanized Cities. – (a) Cities with a minimum population of two hundred thousand
(200,000) inhabitants, as certified by the National Statistics Office, and with the latest annual income of at
least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city
treasurer, shall be classified as highly urbanized cities.

(b) Cities which do not meet above requirements shall be considered component cities of the province in
which they are geographically located. (Emphasis supplied)

The P100 million income requirement imposed by R.A. No. 9009, being an arbitrary amount, cannot be
conclusively said to be the only amount “sufficient, based on acceptable standards, to provide for all
essential government facilities and services and special functions commensurate with the size of its
13
population,” per Section 7 of the LGC. It was imposed merely because it is difficult to comply with. While
it could be argued that P100 million, being more than P20 million, could, of course, provide the essential
government facilities, services, and special functions vis-à-vis the population of a municipality wanting to
become a component city, it cannot be said that the minimum amount of P20 million would be insufficient.
This is evident from the existing cities whose income, up to now, do not comply with the P100 million
income requirement, some of which have lower than the P20 million average annual income. Consider
14
the list below—

CITY AVERAGE ANNUAL INCOME


1. Marawi City 5,291,522.10

2. Palayan City 6,714,651.77

3. Sipalay City 9,713,120.00

4. Canlaon City 13,552,493.79

5. Himamaylan City 15,808,530.00

6. Isabela City 16,811,246.79

7. Munoz City 19,693,358.61

8. Dapitan City 20,529,181.08

9. Tangub City 20,943,810.04

10. Bayawan City 22,943,810.04

11. Island Garden City of Samal 23,034,731.83

12. Tanjay City 23,723,612.44

13. Tabaco City 24,152,853.71

14. Oroquieta City 24,279,966.51

15. Ligao City 28,326,745.86

16. Sorsogon City 30,403,324.59

17. Maasin City 30,572,113.65

18. Escalante City 32,113,970.00

19. Iriga City 32,757,871.44

20. Gapan City 34,254,986.47

21. Candon City 36,327,705.86

22. Gingoog City 37,327,705.86


23. Masbate City 39,454,508.28

24. Passi City 40,314,620.00

25. Calbayog City 40,943,128.73

26. Calapan City 41,870,239.21

27. Cadiz City 43,827,060.00

28. Alaminos City 44,352,501.00

29. Bais City 44, 646,826.48

30. San Carlos City 46,306,129.13

31. Silay City 47,351,730.00

32. Bislig City 47,360,716.24

33. Tacurong City 49,026,281.56

34. Talisay City (Negros Occidental) 52,609,790.00

35. Kabankalan City 53,560,580.00

36. Malaybalay City 54,423,408.55

37. La Carlota City 54,760,290.00

38. Vigan City 56,831,797.19

39. Balanga City 61,556,700.49

40. Sagay City 64,266,350.00

41. Cavite City 64,566,079.05

42. Koronadal City 66,231,717.19

43. Cotabato City 66,302,114.52

44. Toledo City 70,157,331.12


45. San Jose City 70,309,233.43

46. Danao City 72,621,955.30

47. Bago City 74,305,000.00

48. Valencia City 74,557,298.92

49. Victorias City 75,757,298.92

50. Cauayan City 82,949,135.46

51. Santiago City 83,816,025.89

52. Roxas City 85,397,830.00

53. Dipolog City 85,503,262.85

54. Trece Martires City 87,413,786.64

55. Talisay City (Cebu) 87,964,972.97

56. Ozamis city 89,054,056.12

57. Surigao City 89,960,971.33

58. Panabo City 91,425,301.39

59. Digos City 92,647,699.13


The undeniable fact that these cities remain viable as component cities of their respective provinces
emphasizes the arbitrariness of the amount of P100 million as the new income requirement for the
conversion of municipalities into component cities. This arbitrariness can also be clearly gleaned from the
respective distinctive traits and level of economic development of the individual respondent municipalities
as above submitted.

Verily, the determination of the existence of substantial distinction with respect to respondent
municipalities does not simply lie on the mere pendency of their cityhood bills during the 11th Congress.
This Court sees the bigger picture. The existence of substantial distinction with respect to respondent
municipalities covered by the Cityhood Laws is measured by the purpose of the law, not by R.A. No.
9009, but by the very purpose of the LGC, as provided in its Section 2 (a), thus—

SECTION 2. Declaration of Policy.—(a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities and resources. The process of
decentralization shall proceed from the National Government to the local government units.

Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become
component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized this
capacity and viability of respondent municipalities to become the State’s partners in accelerating
economic growth and development in the provincial regions, which is the very thrust of the LGC,
manifested by the pendency of their cityhood bills during the 11th Congress and their relentless pursuit
for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the
11th Congress, and such condition continues to exist.

Petitioners in these cases complain about the purported reduction of their “just share” in the IRA. To be
sure, petitioners are entitled to a “just share,” not a specific amount. But the feared reduction proved to be
false when, after the implementation of the Cityhood Laws, their respective shares increased, not
15
decreased. Consider the table below—

CY 2006 IRA CY 2008 IRA


CITY (Before Implementation of (Actual Release After Implementation of Sixteen
Sixteen [16] Cityhood Laws) [16] Cityhood Laws)

Bais 219,338,056.00 242,193,156.00

Batangas 334,371,984.00 388,871,770.00

Bayawan 353,150,158.00 388,840,062.00

Cadiz 329,491,285.00 361,019,211.00

Calapan 227,772,199.00 252,587,779.00

Calbayog 438,603,378.00 485,653,769.00

Cauayan 250,477,157.00 277,120,828.00

Gen.
518,388,557.00 631,864,977.00
Santos

Gingoog 314,425,637.00 347,207,725.00

Himamaylan 248,154,381.00 277,532,458.00

Iloilo 358,394,268.00 412,506,278.00

Iriga 183,132,036.00 203,072,932.00

Legaspi 235,314,016.00 266,537,785.00


Ligao 215,608,112.00 239,696,441.00

Oroquieta 191,803,213.00 211,449,720.00

Pagadian 292,788,255.00 327,401,672.00

San Carlos 239,524,249.00 260,515,711.00

San
182,320,356.00 204,140,940.00
Fernando

Santiago 508,326,072.00 563,679,572.00

Silay 216,372,314.00 241,363,845.00

Surigao 233,968,119.00 260,708,071.00

Tacurong 179,795,271.00 197,880,665.00

Tagaytay 130,159,136.00 152,445,295.00

Tarlac 348,186,756.00 405,611,581.00

Tangub 162,248,610.00 180,640,621.00

Urdaneta 187,721,031.00 207,129,386.00

Victorias 176,367,959.00 194,162,687.00

Zamboanga 918,013,016.00 1,009,972,704.00


What these petitioner cities were stating as a reduction of their respective IRA shares was based on a
computation of what they would receive if respondent municipalities were not to become component cities
at all. Of course, that would mean a bigger amount to which they have staked their claim. After
considering these, it all boils down to money and how much more they would receive if respondent
municipalities remain as municipalities and not share in the 23% fixed IRA from the national government
for cities.

Moreover, the debates in the Senate on R.A. No. 9009, should prove enlightening:

SENATOR SOTTO. Mr. President, we just want to be enlightened again on the previous qualification and
the present one being proposed. Before there were three…

SENATOR PIMENTEL. There are three requisites for a municipality to become a city. Let us start with the
finance.
SENATOR SOTTO. Will the distinguished sponsor please refresh us? I used to be the chairman of the
Committee on Local Government, but the new job that was given to me by the Senate has erased
completely my memory as far as the Local Government Code is concerned.

SENATOR PIMENTEL. Yes, Mr. President, with pleasure. There are three requirements. One is financial.

SENATOR SOTTO. All right. It used to be P20 million.

SENATOR PIMENTEL. It is P20 million. Now we are raising it to P100 million of locally generated funds.

SENATOR SOTTO. In other words, the P20 million before includes the IRA.

SENATOR PIMENTEL. No, Mr. President.

SENATOR SOTTO. It should not have been included?

SENATOR PIMENTEL. The internal revenue share should never have been included. That was not the
intention when we first crafted the Local Government Code. The financial capacity was supposed to be
demonstrated by the municipality wishing to become a city by its own effort, meaning to say, it should not
rely on the internal revenue share that comes from the government. Unfortunately, I think what happened
in past conversions of municipalities into cities was, the Department of Budget and Management, along
with the Department of Finance, had included the internal revenue share as a part of the municipality,
demonstration that they are now financially capable and can measure up to the requirement of the Local
Government Code of having a revenue of at least P20 million.

SENATOR SOTTO. I am glad that the sponsor, Mr. President, has spread that into the Record because
otherwise, if he did not mention the Department of Finance and the Department of Budget and
Management, then I would have been blamed for the misinterpretation. But anyway, the gentleman is
correct. That was the interpretation given to us during the hearings.

So now, from P20 million, we make it P100 million from locally generated income as far as population is
concerned.

SENATOR PIMENTEL. As far as population is concerned, there will be no change, Mr. President. Still
150,000.

SENATOR SOTTO. Still 150,000?

SENATOR PIMENTEL. Yes.

SENATOR SOTTO. And then the land area?

SENATOR PIMENTEL. As to the land area, there is no change; it is still 100 square kilometers.

SENATOR SOTTO. But before it was “either/or”?

SENATOR PIMENTEL. That is correct. As long as it has one of the three requirements, basically, as long
as it meets the financial requirement, then it may meet the territorial requirement or the population
requirement.

SENATOR SOTTO. So, it remains “or”?


SENATOR PIMENTEL. We are now changing it into AND.

SENATOR SOTTO. AND?

SENATOR PIMENTEL. Yes.

SENATOR SOTTO. I see.

SENATOR PIMENTEL. That is the proposal, Mr. President. In other words…

SENATOR SOTTO. Does the gentleman not think there will no longer be any municipality that will qualify,
Mr. President?

SENATOR PIMENTEL. There may still be municipalities which can qualify, but it will take a little time.
They will have to produce more babies. I do not know—expand their territories, whatever, by reclamation
or otherwise. But the whole proposal is geared towards making it difficult for municipalities to convert into
cities.

On the other hand, I would like to advert to the fact that in the amendments that we are proposing for the
entire Local Government Code, we are also raising the internal revenue share of the municipalities.

SENATOR SOTTO. I see.

SENATOR PIMENTEL. So that, more or less, hindi naman sila dehado in this particular instance.

SENATOR SOTTO. Well, then, because of that information, Mr. President, I throw my full support behind
the measure.

Thank you, Mr. President.

16
SENATOR PIMENTEL. Thank you very much, Mr. President. (Emphasis supplied)

From the foregoing, the justness in the act of Congress in enacting the Cityhood Laws becomes obvious,
especially considering that 33 municipalities were converted into component cities almost immediately
prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood Laws, Congress merely took
the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt
increase in the income requirement of R.A. No. 9009, acknowledging the “privilege” that they have
already given to those newly-converted component cities, which prior to the enactment of R.A. No. 9009,
were undeniably in the same footing or “class” as the respondent municipalities. Congress merely
recognized the capacity and readiness of respondent municipalities to become component cities of their
respective provinces.

Petitioners complain of the projects that they would not be able to pursue and the expenditures that they
would not be able to meet, but totally ignored the respondent municipalities’ obligations arising from the
contracts they have already entered into, the employees that they have already hired, and the projects
that they have already initiated and completed as component cities. Petitioners have completely
overlooked the need of respondent municipalities to become effective vehicles intending to accelerate
economic growth in the countryside. It is like the elder siblings wanting to kill the newly-borns so that their
inheritance would not be diminished.

Apropos is the following parable:


There was a landowner who went out at dawn to hire workmen for his vineyard. After reaching an
agreement with them for the usual daily wage, he sent them out to his vineyard. He came out about
midmorning and saw other men standing around the marketplace without work, so he said to them, “You
too go along to my vineyard and I will pay you whatever is fair.” They went. He came out again around
noon and mid-afternoon and did the same. Finally, going out in late afternoon he found still others
standing around. To these he said, “Why have you been standing here idle all day?” “No one has hired
us,” they told him. He said, “You go to the vineyard too.” When evening came, the owner of the vineyard
said to his foreman, “Call the workmen and give them their pay, but begin with the last group and end with
the first.” When those hired late in the afternoon came up they received a full day’s pay, and when the
first group appeared they thought they would get more, yet they received the same daily wage.
Thereupon they complained to the owner, “This last group did only an hour’s work, but you have paid
them on the same basis as us who have worked a full day in the scorching heat.” “My friend,” he said to
one in reply, “I do you no injustice. You agreed on the usual wage, did you not? Take your pay and go
home. I intend to give this man who was hired last the same pay as you. I am free to do as I please with
17
my money, am I not? Or are you envious because I am generous?”

Congress, who holds the power of the purse, in enacting the Cityhood Laws, only sought the well-being of
respondent municipalities, having seen their respective capacities to become component cities of their
provinces, temporarily stunted by the enactment of R.A. No. 9009. By allowing respondent municipalities
to convert into component cities, Congress desired only to uphold the very purpose of the LGC, i.e., to
make the local government units “enjoy genuine and meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities and make them more effective partners in the
attainment of national goals,” which is the very mandate of the Constitution.

Finally, we should not be restricted by technical rules of procedure at the expense of the transcendental
interest of justice and equity. While it is true that litigation must end, even at the expense of errors in
judgment, it is nobler rather for this Court of last resort, as vanguard of truth, to toil in order to dispel
apprehensions and doubt, as the following pronouncement of this Court instructs:

The right and power of judicial tribunals to declare whether enactments of the legislature exceed the
constitutional limitations and are invalid has always been considered a grave responsibility, as well as a
solemn duty. The courts invariably give the most careful consideration to questions involving the
interpretation and application of the Constitution, and approach constitutional questions with great
deliberation, exercising their power in this respect with the greatest possible caution and even reluctance;
and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable
doubt. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state
constitution to be in contravention of the Constitution x x x, the case must be so clear to be free from
doubt, and the conflict of the statute with the constitution must be irreconcilable, because it is but a
decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is
passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore,
in no doubtful case will the judiciary pronounce a legislative act to be contrary to the constitution. To
18
doubt the constitutionality of a law is to resolve the doubt in favor of its validity.

WHEREFORE, the Motion for Reconsideration of the “Resolution” dated August 24, 2010, dated and filed
on September 14, 2010 by respondents Municipality of Baybay, et al. is GRANTED. The Resolution dated
August 24, 2010 is REVERSED and SET ASIDE. The Cityhood Laws—Republic Acts Nos. 9389, 9390,
9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491—are
declared CONSTITUTIONAL.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO MORALES


Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA


Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
resolution had been reached in consultation before the case was assigned to the writer of the opinion of
the Court.

RENATO C. CORONA
Chief Justice

Notes:

1
Republic Acts 9389 [Baybay City, Leyte], 9390 [Bogo City, Cebu], 9391 [Catbalogan City, Samar], 9392
[Tandag City, Surigao del Sur], 9393 [Lamitan City, Basilan], 9394 [Borongan City, Samar], 9398
[Tayabas City, Quezon], 9404 [Tabuk City, Kalinga], 9405 [Bayugan City, Agusan del Sur], 9407 [Batac
City, Ilocos Norte], 9408 [Mati City, Davao Oriental], 9409 [Guihulngan City, Negros Oriental], 9434
[Cabadbaran City, Agusan del Norte], 9435 [El Salvador City, Misamis Oriental], 9436 [Carcar City,
Cebu], and 9491 [Naga City, Cebu].
2
Penned by J. Carpio, with JJ. Quisumbing, Austria-Martinez, Carpio-Morales, Velasco, Jr., and Brion,
concurring; dissenting, J. Reyes, joined by JJ. Corona, Azcuna, Chico-Nazario, and Leonardo-De Castro;
C.J. Puno, and JJ. Nachura and Tinga took no part; J. Ynares-Santiago was on leave.

3
Justice Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Ynares-Santiago, Corona, Chico-
Nazario, and Leonardo-De Castro. Chief Justice Puno and Justice Nachura took no part.

4
Justice Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Ynares-Santiago, Corona, Chico-
Nazario, Leonardo-De Castro, and Bersamin. Chief Justice Puno and Justice Nachura took no part.
Justice Quisumbing was on leave.

5
Citations omitted.

6
Penned by J. Velasco, Jr., with JJ. Corona, Leonardo-De Castro, Bersamin, Abad, and Villarama
concurring; dissenting, J. Carpio, joined by JJ. Carpio-Morales, Brion, and Peralta; C.J. Puno and JJ.
Nachura and Del Castillo took no part.

7
Penned by J. Carpio, with JJ. Carpio-Morales, Brion, Peralta, Villarama, Mendoza, and Sereno,
concurring; dissenting,, J. Velasco, Jr., joined by C.J. Corona, and JJ. Leonardo-De Castro, Bersamin,
Abad, and Perez; JJ. Nachura and Del Castillo took no part.

8
II Record, Senate, 13th Congress, p. 164 (October 5, 2000); rollo (G.R. No. 176951), Vol. 5, p. 3765.

9
Id. at 167-168; id. at 3768-3769.

10
Review Center Association of the Philippines v. Ermita, G.R. No. 180046, April 2, 2009, 583 SCRA
428, 450, citing Kilusang Mayo Uno v. Director-General, National Economic Development Authority, G.R.
No. 167798, April 19, 2006, 487 SCRA 623.

11
Id., citing Ople v. Torres, 354 Phil. 948 (1998).

12
De Guzman, Jr. v. Commission on Elections, 391 Phil. 70, 79 (2000); Tiu v. Court of Tax Appeals, 361
Phil. 229, 242 (1999).

13
SECTION 7. Creation and Conversion. — As a general rule, the creation of a local government unit or
its conversion from one level to another level shall be based on verifiable indicators of viability and
projected capacity to provide services, to wit:

(a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its population, as
expected of the local government unit concerned;

(b) Population .— It shall be determined as the total number of inhabitants within the territorial jurisdiction
of the local government unit concerned; and

(c) Land Area .— It must be contiguous, unless it comprises two (2) or more islands or is separated by a
local government unit independent of the others; properly identified by metes and bound with technical
descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its
populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the
National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR). (Emphasis supplied.)

14
The figures reflect the actual income of the cities for 2006. If R.A. No. 9009 is to be applied such that
the figures are expressed in 2000 constant prices, the income of the cities will even be lower.
(Certification from the Bureau of Local Government Finance dated December 5, 2008; rollo [G.R. No.
176951], Vol. 5, pp. 3731-3734.)

15
Based on the letter dated December 9, 2008 of the Department of Budget and Management; rollo (G.R.
No. 176951), Vol. 5, pp. 3978-3986.

16
Committee Amendments re S. No. 2157, Records of the Senate, Vol. II, No. 24, October 5, 2000, pp.
165-166; id. at 3766-3767.

17
Mat. 20: 1-15.

18
Churchill v. Rafferty, 32 Phil. 580, 584 (1915).

————————————————————————————————————————-

CONCURRING OPINION

ABAD, J.:

The Court has received flak on this case for supposed “flip-flopping.” But its shifting views are
understandable because of the nearly even soundness of the opposing advocacies of the two groups of
1
cities over the validity of the sixteen cityhood laws. It also does not help that the membership of the Court
has been altered by retirements and replacements at various stages from when it first decided to annul
the laws, to when it reconsidered and upheld their validity, and to when it reverted to the original position
and declared the laws involved unconstitutional. This to me is a healthy sign of democracy at work, the
members being blind to the need to conform.

In its Resolution of August 24, 2010, the Court reversed its December 21, 2009Decision and denied the
quest for cityhood of sixteen municipalities on the ground that the laws creating them violated Section 10,
2 3
Article X of the 1987 Constitution and the equal protection clause. By that resolution, the majority also
held that the Court erred in setting aside its November 18, 2008 decision since this latter had attained
finality after the Court’s denial of the second motion for reconsideration of the respondent cities, albeit the
6-6 deadlock vote and the corresponding entry of judgment.

The Issues Presented

The motion for reconsideration of respondent cities presents the following issues:

1. Whether or not the sixteen cityhood laws violate Section 10, Article X of the 1987 Constitution;

2. Whether or not such laws violate the equal protection clause; and

3. Whether or not the Court could still modify its decision dated November 18, 2008.

Discussions
One. In ruling that the sixteen cityhood laws violated Section 10 of Article X, the majority in the Court held
that the creation of local government units must conform to the criterion prescribed in Section 450 of the
4
Local Government Code. Since those laws, which were passed after the enactment of Republic Act
5
(R.A.) 9009, covered municipalities that did not comply with the amended income requirement set by the
Local Government Code, their conversion into cities were constitutionally infirm. The majority held that
R.A. 9009 did not provide exemptions from its application. Although the provisions in the sixteen cityhood
laws established exemptions from such requirement for the subject municipalities, the same can not be
considered without violating Section 10, Article X, taking into account the legislature’s primary intent in
6
passing R.A. 9009.

I take exception on how the majority of the Court selectively chose to focus on the sponsorship speech of
Senator Aquilino Pimentel to come up with a “primary intent” theory for R.A. 9009. Surely, the intent of
R.A. 9009 can not be based solely on that speech. The Court should not ignore the legislative history of
R.A. 9009, including the pertinent exchanges during the interpellation of Senator Pimentel and Senate
President Franklin Drilon, thus:

THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x

THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the
conversion of a number of municipalities into cities and which qualify under the present standard.

We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber
apply the standard as proposed in this bill to those bills which are pending for consideration?

SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill x x x [if] approved, retroact to
the bills that are pending in the Senate for conversion from municipalities to cities.

THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not
become a policy of the Chamber, assuming that this bill becomes a law x x x that it will apply to those bills
which are already approved by the House under the old version of the [LGC] and are now pending in the
Senate? The Chair does not know if we can craft a language which will limit the application to those which
are not yet in the Senate. Or is that a policy that the Chamber will adopt?

SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision
because what we are saying here will form part of the interpretation of this bill. Besides, if there is no
retroactivity clause, I do not think that the bill would have any retroactive effect.

THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will
not be affected.

7
SENATOR PIMENTEL. These will not be affected Mr. President. (Emphasis supplied)

Two things are clear from the above exchanges. First, the legislature intended to exempt from the
amended income requirement of R.A. 9009 the municipalities that had pending cityhood bills during the
11th Congress. As a matter of fact, such legislative intent was carried over to the 12th and the 13th
8
Congress when the House of Representatives adopted Joint Resolutions that sought the exemption of
twenty-four municipalities, including the sixteen, from the application of R.A. 9009. The continuing intent
of Congress culminated in the inclusion of the exemption clause in the cityhood bills and their subsequent
passage.

Second, it is also clear from the above exchanges between Senators Pimentel and Drilon that Congress
did not anymore insert an exemption clause from the income requirement of R.A. 9009 since such
exchanges, when read by the Court, would already reveal the lawmakers’ intent regarding such matter.
Besides, the exemption clause found in each of the cityhood laws serves as an affirmation of Congress’
intent to exempt them from the increased income requirement of R.A. 9009. These new cities have not
altogether been exempted from the operation of the Local Government Code covering income
requirement. They have been expressly made subject to the lower income requirement of the old code.
There remains, therefore, substantial compliance with the provision of Section 10, Article X of the
Constitution which provides that no city may be created “except in accordance with the criteria
established in the local government code.”

The above interpretation accommodates the “primary” intention of Congress in preventing the mad rush
of municipalities wanting to be converted into cities and the other intention of Congress to exempt the
municipalities which have pending cityhood bills before the enactment of R.A. 9009.

This is not to say that the views of the majority in the Court are absolutely illogical or wrong. They are
admittedly plausible. But, given the unstable footing of such views as evidenced by its shifting positions
on the issue, the Court should have adopted an attitude of becoming humility, upholding the
constitutionality of the acts of a co-equal branch of government regarding a matter that properly fell within
its powers.

Two. The equal protection clause of the Constitution seeks to protect persons from being deprived of life,
liberty, or property by the uneven application of statutes. In invoking this protection, it is incumbent on
petitioner League of Cities to show, not only that the exemption granted to the sixteen cities amounted to
arbitrary classification but, that the League or their members have been deprived of life, liberty or
property, by reason of the exemption. The League of Cities has failed to discharge this burden.

9
The Court explained in Ichong v. Hernandez the limits of the equal protection clause, thus:

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which is to operate. It does
not demand absolute equality among residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exists (sic) for
making a distinction between those who fall within such class and those who do not. (Emphasis supplied)

Far from baselessly favoring the sixteen municipalities, Congress gave them exemptions from the
application of R.A. 9009 based on its sense of justice and fairness. Senator Alfredo Lim explained this in
his sponsorship speech on House Joint Resolution No. 1, thus:

x x x The imposition of a much higher income requirement for the creation of a city virtually delivered a
lethal blow to the aspirations of the 24 municipalities to attain economic growth and progress. To them, it
was unfair; like any sport—changing the rules in the middle of the game.

xxxx

I, for one, share their view that fairness dictates that they should be given a legal remedy by which they
could be allowed to prove that they have all the necessary qualifications for city status using the criteria
set forth under the Local Government Code prior to its amendment by R.A. 9009.

xxxx

In essence, the Cityhood bills now under consideration will have the same effect as that of House Joint
Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of
R.A. 9009. The proponents are invoking the exemption on the basis of justice and fairness. x x
10
x (Emphasis supplied)

What makes the injustice quite bitter is the fact that the sixteen cities did not merely have pending
cityhood bills during the 11th Congress. They also met at that time the income criteria set under Section
450 of the then Local Government Code. The Court owes to these cities the considerations that justice
and fair play demands. It can not be denied that substantial distinction sets them apart from the other
cities.

Further, petitioner League of Cities failed to show that the creation of the sixteen new cities discriminated
against other cities. As the respondent cities point out, the majority of the present cities in our midst do
11
not meet the P100 million minimum income requirement of the Local Government Code. It boggles the
mind how these deficient cities can complain of denial of equal protection of the law.

Besides, assuming an improper classification in the case of the sixteen cities, petitioner League of Cities
can not invoke the equal protection clause since it has failed to show that it will suffer deprivation of life,
liberty, or property by reason of such classification.

Actually, the existing cities would not cease to exist nor would their liberties suffer by reason of the
enactment of the sixteen cityhood laws. That their Internal Revenue Allotment (IRA) will be diminished
does not amount to deprivation of property since the IRA is not their property until it has been
12
automatically released. Mere expectancy in the receipt of IRA can not be regarded as the “property”
envisioned in the Bill of Rights.

Three. The majority maintain that the Court did not properly set aside its original decision dated
November 18, 2008, which earlier invalidated the Cityhood laws since, procedurally, the Court had
13
previously declared such decision already final. But a question had been raised regarding the propriety
of such declaration of finality, given a pending question respecting the consequence of a 6-6 vote on the
constitutionality of the cityhood laws. At any rate, the Court has under extraordinary
14
circumstances reconsidered its ruling despite an entry of judgment. It will not allow the technical rules to
15
hinder it from rendering just and equitable relief.

The issues presented in this case do not only involve rights and obligations of some parties but the
constitutionality of the exercise by Congress of its power to make laws. There is no reason to uphold the
November 18, 2008 decision since the petitioner League of Cities has failed to overcome the strong
presumption in favor of the cityhood laws’ constitutionality.

I vote to GRANT the motion for reconsideration of the respondent cities, REVERSE AND SET ASIDE the
Resolution of the Court dated August 24, 2010, REINSTATE the Decision of the Court dated December
21, 2009, and DISMISS the Consolidated petitions of the League of Cities.

ROBERTO A. ABAD
Associate Justice

Notes:

1
Republic Acts 9389, 9390, 9391, 9392, 9394, 9398, 9393, 9404, 9405, 9407, 9408, 9409, 9434, 9436,
9435 and 9491.

2
Section 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.
3
Section 1, Article III: No person shall be deprived of life, liberty and property without due process of law
nor shall any person be denied the equal protection of the laws.(Emphasis Supplied)

4
Republic Act 7160, as amended.

5
An Act Amending Section 450 of Republic Act No. 7160, Otherwise Known as The Local Government
Code of 1991, by Increasing the Average Annual Income Requirement for a Municipality or Cluster of
Barangay to be Converted into a Component City.

6
To restrain “the mad rush of municipalities wanting to be converted into cities”. Sponsorship speech of
Senator Aquilino Pimintel, October 5, 2000.

7
See Justice Ruben T. Reyes’ Dissent promulgated on November 18, 2008; citing II Record, Senate, 13th
Congress, pp. 167-168.

8
Joint Resolution No. 29 entitled: “Joint Resolution to Exempt Certain Municipalities Embodied in Bills
Filed in Congress before June 30, 2001 from the coverage of Republic Act No. 9009″ and Joint
Resolution No. 1, readopting Joint Resolution No. 29.

9
G.R. No. L-7995, 101 Phil. 1155 (1952), citing 2 Cooley, Constitutional Limitations, 824-825.

10
Journal, Senate 13th Congress, 59th Session, 1238 -1240 cited in Justice Ruben T. Reyes’ Dissent
promulgated on November 18, 2008.

11
Motion for Reconsideration of respondent cities, p. 49.

12
Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000.

13
The Entry of Judgment of the Decision dated November 18, 2008 was made on May 21, 2009 as per
Resolution of the Court dated June 2, 2009.

14
See Manotok IV v. Heirs of Barque, G.R. Nos. 162335 & 162605, December 18, 2008.

15
Javier v. Commission on Elections, G.R. Nos. L-68379-81, September 22, 1986.

———————————————————————————————————————-

DISSENTING OPINION

CARPIO, J.:

I dissent.

In their motion for reconsideration, respondents argue that: (1) the petitions on their face do not call for
the exercise of judicial power considering that the share of local government units in the Internal Revenue
Allotments does not constitute rights which are legally demandable and enforceable; (2) the 16 Cityhood
Laws are not unconstitutional; and (3) there was no violation of the equal protection clause.

1
The crux of the controversy is whether the 16 Cityhood Laws are constitutional.
As I have consistently opined, which opinion is concurred in by the majority members of this Court in the
reinstated Decision of 18 November 2008 and in the assailed Resolution of 24 August 2010, the 16
Cityhood Laws are unconstitutional.

First, the 16 Cityhood Laws violate Section 10, Article X of the 1987 Constitution. This provision reads:

No province, city, municipality, or barangay shall 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. (Emphasis supplied)

The Constitution is clear. The creation of local government units must follow thecriteria established in
2
the Local Government Code and not in any other law. There is only one Local Government Code. The
Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for
the creation of a city, including the conversion of a municipality into a city. Congress cannot write such
criteria in any other law, like the Cityhood Laws.

RA 9009 amended Section 450 of the Local Government Code to increase the income requirement
from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence,
from that moment theLocal Government Code required that any municipality desiring to become a
city must satisfy the P100 million income requirement. Section 450 of the Local Government Code,
as amended by RA 9009, does not contain any exemption from this income requirement.

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though
their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all
enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased
income requirement in Section 450 of the Local Government Code, as amended by RA 9009.Such
exemption clearly violates Section 10, Article X of the Constitution and is thus patently
unconstitutional. To be valid, such exemption must be written in the Local Government Code and
not in any other law, including the Cityhood Laws.

Second, the 16 Cityhood Laws violate the equal protection clause of the Constitution.

The equal protection clause of the 1987 Constitution permits a valid classification under the following
conditions:

1. The classification must rest on substantial distinctions;

2. The classification must be germane to the purpose of the law;

3. The classification must not be limited to existing conditions only; and

3
4. The classification must apply equally to all members of the same class.

As I have previously stressed, there is no substantial distinction between municipalities with pending
cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency
of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from
another for the purpose of the income requirement. The pendency of a cityhood bill in the
th
11 Congress does not affect or determine the level of income of a municipality.Municipalities with
pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that
did not have pending cityhood bills. In short, the classification criterion—mere pendency of a
th
cityhood bill in the 11 Congress—is not rationally related to the purpose of the law which is to
prevent fiscally non-viable municipalities fromconverting into cities.

Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific
condition existing at the time of passage of RA 9009. That specific condition will never happen again.
This violates the requirement that a valid classification must not be limited to existing conditions
only.

Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage
based on an arbitrary date—the filing of their cityhood bills before the end of the 11th Congress—as
against all other municipalities that want to convert into cities after the effectivity of RA 9009.

In addition, limiting the exemption only to the 16 municipalities violates the requirement that the
classification must apply to all similarly situated. Municipalities with the same income as the 16
respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly,
as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of
the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

I repeat, Section 10, Article X of the Constitution expressly provides that “no x xx city shall be created x
xx except in accordance with the criteria established in the local government code.” This provision
can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied
exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws
other than the Local Government Code, provided an exemption from the increased income requirement
for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009.
Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution.

Accordingly, I vote to DENY the motion for reconsideration of the Resolution dated 24 August 2010.

ANTONIO T. CARPIO
Associate Justice

Notes:

1
In paragraph 93 of the motion for reconsideration, respondents state:

93. Thus, in this motion for reconsideration of the “Resolution” of August 24, 2010, what is in issue is the
correctness of the ruling of the Majority on [the] merits of the case, particularly the constitutionality of the
Cityhood Laws.

2
Republic Act No. 7160, as amended.

3
De Guzman, Jr. v. COMELEC, 391 Phil. 70, 79 (2000); Tiu v. Court of Tax Appeals, 361 Phil. 229, 242
(1999).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,


vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1âwphi1

was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function – to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37
Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO


Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD


Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE


Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN


Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, T hereby certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO


Chief Justice

Footnotes

1
Rollo, pp. 257-286.

2
Id. at 287-298.

3
Entitled "Resolution expressing the sense of the Senate that the Judicial and Bar Council
(JBC) defer the consideration of all nominees and the preparation of the short list to be
submitted to the President for the position of Chief Justice of the Supreme Court;" id. at 303-
304.

4
Entitled "Resolution expressing anew the sense of the Senate that the Senate and House
of Representatives should have one (1) representative each in the Judicial and Bar Council
(JBC) and that each representative is entitled to a full vote;" id. at 305-307.

5
Entitled "Resolution to file an urgent motion with the Supreme Court to set for oral argument
the motion for reconsideration filed by the representatives of Congress to the Judicial and
Bar Council (JBC) in the case of Francisco Chavez v. Judicial and Bar Council, Sen. Francis
Joseph G.. Escudero and Rep. Niel Tupas Jr., G.R. No. 2022242 considering the primordial
importance of the constitutional issues involved;" id. at 308-310.

6
Entitled "Resolution authorizing Senator Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for reconsideration filed by the representative of the Senate to
the Judicial and Bar Council in the case of Francisco Chavez v. Judicial and Bar Council,
Sen. Francis Joseph G. Escudero and Rep. Niel Tupas, Jr.;" id. at 311-312.

7
Id. at 313-314.

8
Id. at (318-I)-(318-K).

9
Id. at 318-J.

10
Petitioner’s Memorandum, id. at 326-380; Respondents’ Memorandum, id. at 381-424.

11
Malolos Constitution Article 80 Title X. – The Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the National Assembly in concurrence with the
President of the Republic and the Secretaries of the Government, and shall be absolutely
independent of the Legislative and Executive Powers."
12
1935 Constitution Article VIII, Section 5. – The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the
Commission on Appointments."

13
1 Records of the Constitutional Commission Proceedings and Debates, 437.

14
Section 4 Article X of the 1973 Constitution provides: "The Members of the Supreme Court
and judges of inferior courts shall be appointed by the President."

15
1 Records, Constitutional Commission, Proceedings and Debates, p. 487.

16
List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp.
62-63.

17
Id.

18
Id. at 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and
Minutes of the 12th En Banc Meeting, May 30, 2001.

19
Malcolm, The Constitutional Law of the Philippine Islands (2nd ed. 1926), p. 26.

20
1987 Constitution, Article VII, Section 4. – The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall begin at noon on the
thirtieth day of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any re-election. No person
who has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time.

xxx

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

x x x.

21
1987 Constitution, Article VII, Section 9. – Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President shall nominate a
Vice-President from among the Members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately. (Emphasis supplied)

22
1987 Constitution, Article VII, 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. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it. (Emphasis supplied)

23
1987 Constitution, Article VI Section 27(1). – Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he approves the same, he shall
sign it; otherwise, he shall veto it and return the same with his objections to the House where
it originated, which shall enter the objections at large in its Journal and proceed to reconsider
it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each House shall be determined by yeas
or nays, and the names of the Members voting for or against shall be entered in its Journal.
The President shall communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had
signed it.

24
1987 Constitution, Article VI Section 24. – All appropriation, revenue or tariff bills, bills
authorizing increase of public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or concur with
amendments.

25
1987 Constitution, Article VI Section 23 (1). – The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.

26
1987 Constitution, Article VII Section 4. – The returns of every election for President and
Vice-President, duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the votes.

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

27
1987 Constitution, Article XI Section 3 (1). – The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.

xxx

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.
28
Dated March 27, 2007; Annex "D," rollo, p. 104.

29
Annex C, id. at 95. Quoting the interpretation of Article VIII, Section (1) of the Constitution
by Fr. Joaquin Bernas in page 984 of his book, The 1987 Constitution of the Republic of the
Philippines, A Commentary. He quoted another author, Hector de Leon, and portions of the
decisions of this Court in Flores v. Drilon, and Escalante v. Santos, before extensively
quoting the Record of the Constitutional Commission of 1986 (pages 444 to 491).

30
Annex "E," id. at 1205.

31
Rollo, pp. 91-93.

32
G.R. No. 166006, March 14, 2008, 548 SCRA 485.

33
Id. at 516-517. (Citations omitted.)

34
Black’s Law Dictionary, Fifth ed., p. 198.

35
Agpalo, Statutory Construction, 2009 ed., p. 231.

36
Id., citing Cartwrite v. Cartwrite, 40 A2d 30, 155 ALR 1088 (1944).

37
Id., Agpalo, p. 232

38
Dissenting Opinion, Chief Justice Panganiban, Central Bank (Now Bangko Sentral Ng
Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, citing Peralta v. COMELEC. No. L-47771, March 11,
1978, 82 SCRA 30, 77, citing concurring and dissenting opinion of former Chief Justice
Fernando, citing Malcolm.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

On July 17, 2012, the Court rendered a Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring
that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The
Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a
representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987
Constitution.

On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral
arguments on the following Issues:
1. Whether or not the current practice of the JBC to perform its functions with eight members, two of
whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of
the 1987 Constitution.

A. Whether or not the JBC should be composed of seven members only.

B. Whether or not Congress is entitled to more than one seat in the JBC.

C. Assuming Congress is entitled to more than one seat, whether or not each representative of
Congress should be entitled to exercise one whole vote.

I maintain my dissent to the majority opinion now being reconsidered.

To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House
of Representatives are entitled to one representative each in the JBC, both with the right to cast one
full vote in its deliberations.

At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which
provides that:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(Emphasis supplied)

In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular
letter "a" to describe "representative of the Congress," the Filipino people through the framers of the
1987 Constitution intended Congress to just have one representative in the JBC. The majority
opinion added that there could not have been any plain oversight in the wordings of the provision
since the other provisions of the 1987 Constitution were amended accordingly with the shift to a
bicameral legislative body.

The mere fact, however, that adjustments were made in some provisions should not mislead the
Court into concluding that all provisions have been amended to recognize the bicameral nature of
Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of
the Constitutional Commission himself, admitted that the committee charged with making
adjustments in the previously passed provisions covering the JBC, failed to consider the impact of
the changed character of the Legislature on the inclusion of "a representative of the Congress" in the
membership of the JBC.3

Indeed, to insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and
distinct from each other although they are both involved in law-making. Both legislators are elected
differently, maintain separate administrative organizations, and deliberate on laws independently. In
fact, neither the Senate nor the House of Representatives can by itself claim to represent the
Congress.

Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just
either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While
the provision provides for just "a representative of the Congress," it also provides that such
representation is "ex officio" or "by virtue of one's office, or position."4

Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate
representative to the JBC. In the same way, under the House of Representatives rules, the
Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there
are actually two persons in Congress who hold separate offices or positions with the attached
function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no
representative from Congress will qualify as "ex officio" member of the JBC. This would deny
Congress the representation that the framers of the 1987 Constitution intended it to have.

Having said that the Senate and the House of Representatives should have one representative each
in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its
deliberations. To split the vote between the two legislators would be an absurdity since it would
diminish their standing and make them second class members of the JBC, something that the
Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on
January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by
recognizing this right can the true spirit and reason of Section 8(1) be attained.

For the above reasons, I vote to GRANT the motion for reconsideration.

ROBERTO A. ABAD
Associate Justice

Footnotes

1
Rollo, pp. 226-250.

2
Id. at 257-284.

3
http://opinion.inquirer.net/31813/jbc-odds-and-ends (last accessed February 15, 2013).

4
Webster's New World College Dictionary, 3rd Edition, p. 477.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

LEONEN, J.:

I dissent.
Both the Senate and the House of Representatives must be represented in the Judicial and Bar
Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and
contemporary understanding of our people of the structure of our government. Any other
interpretation diminishes Congress and negates the effectivity of its representation in the Judicial
and Bar Council.

It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to
ensure that the constitutional project ratified by our people is given full effect.

At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides
the following:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of

Justice, and a representative of the Congress as ex officio Members, a representative of the


Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of
the private sector. (Emphasis provided)

Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the
article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase
includes the words "representative of Congress" and "ex officio Members." In the context of the
constitutional plan involving a bicameral Congress, these words create ambiguity.

A Bicameral Congress

Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives x x x. (Emphasis provided)

Senators are "elected at large by the qualified voters of the Philippines".1 Members of the House of
Representatives, on the other hand, are elected by legislative districts2 or through the party list
system.3 The term of a Senator4 is different from that of a Member of the House of
Representatives.5 Therefore, the Senate and the House of Representatives while component parts
of the Congress are not the same in terms of their representation. The very rationale of a bicameral
system is to have the Senators represent a national constituency. Representatives of the House of
Representatives, on the other hand, are dominantly from legislative districts except for one fifth
which are from the party list system.

Each chamber is organized separately.6 The Senate and the House each promulgates their own
rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records
of their proceedings.9 The Senate and the House of Representatives discipline their own respective
members.10

To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a
Senate President and a Speaker of the House of Representatives. There is no single journal for the
Congress of the Philippines, but there is a journal for the Senate and a journal for the House of
Representatives. There is no record of proceedings for the entire Congress of the Philippines, but
there is a Record of proceedings for the Senate and a Record of proceedings for the House of
Representatives. The Congress of the Philippines does not discipline its members. It is the Senate
that promulgates its own rules and disciplines its members. Likewise, it is the House that
promulgates its own rules and disciplines its members.

No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No
Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or
she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the
Senate. By constitutional design, he or she cannot get instructions from the House of
Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she
must be open to amend or modify the instructions given to him or her by the Senate if the House of
Representatives’ instructions are different. Yet, the Constitution vests disciplinary power only on the
Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House of
Representatives may carry instructions from the Senate. Neither Senator nor Member of the House
of Representatives may therefore represent Congress as a whole.

The difference between the Senate and the House of Representative was a subject of discussion in
the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission,
Commissioner Jose F. S. Bengzon presented the following argument during the discussion on
bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino
people in making these officials accountable:

I grant the proposition that the Members of the House of Representatives are closer to the people
that they represent. I grant the proposition that the Members of the House of Representatives
campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant
the proposition that the candidates for Senator do not have as much time to mingle around with their
constituencies in their respective home bases as the candidates for the House. I also grant the
proposition that the candidates for the Senate go around the country in their efforts to win the votes
of all the members of the electorate at a lesser time than that given to the candidates for the House
of Representatives. But then the lesson of the last 14 years has made us mature in our political
thinking and has given us political will and self-determination. We really cannot disassociate the fact
that the Congressman, the Member of the House of Representatives, no matter how national he
would like to think, is very much strongly drawn into the problems of his local constituents in his own
district.

Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people
power, I believe that this so-called people power can be used to monitor not only the Members of the
House of Representatives but also the Members of the Senate. As I said we may have probably
adopted the American formula in the beginning but over these years, I think we have developed that
kind of a system and adopted it to our own needs. So at this point in time, with people power
working, it is not only the Members of the House who can be subjected to people power but also the
Members of the Senate because they can also be picketed and criticized through written articles and
talk shows. And even the people not only from their constituencies in their respective regions and
districts but from the whole country can exercise people power against the Members of the Senate
because they are supposed to represent the entire country. So while the Members of Congress
become unconsciously parochial in their desire to help their constituencies, the Members of the
Senate are there to take a look at all of these parochial proposals and coordinate them with the
national problems. They may be detached in that sense but they are not detached from the people
because they themselves know and realize that they owe their position not only to the people from
their respective provinces but also to the people from the whole country. So, I say that people power
now will be able to monitor the activities of the Members of the House of Representatives and that
very same people power can be also used to monitor the activities of the Members of the Senate.11

Commissioner Bengzon provided an illustration of the fundamental distinction between the House of
Representatives and the Senate, particularly regarding their respective constituencies and
electorate. These differences, however, only illustrate that the work of the Senate and the House of
Representatives taken together results in a Congress functioning as one branch of government.
Article VI, Section 1, as approved by the Commission, spoke of one Congress whose powers are
vested in both the House of Representatives and the Senate.

Thus, when the Constitution provides that a "representative of Congress" should participate in the
Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a
Member of the House of Representative carrying out instructions from the Senate. It is not the kind
of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a
Member of the House of Representative may represent the Congress as a whole is contrary to the
intent of the Constitution. It is unworkable.

One mechanism used in the past to work out the consequence of the majority’s opinion is to allow a
Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to
each allow them only half a vote.

Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice
is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector,
legal academia, and retired justices. Each of these sectors are given equal importance and
rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the
wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty
percent of these institutions.

This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution
granting awesome powers to Congress, intended to diminish its component parts. After all, they are
institutions composed of people who have submitted themselves to the electorate. In creating
shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less
than the input of the professor of law or the member of the Integrated Bar of the Philippines or the
member from the private sector.

The other solution done in the past was to alternate the seat between a Senator and a Member of
the House of Representatives.

To alternate the seat given to Congress between the Senate and the House of Representatives
would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she
represents the Senate and not Congress as a whole. When a Member of the House of
Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the
seat not only diminishes congressional representation; it negates it.

Constitutional Interpretation
The argument that swayed the majority in this case’s original decision was that if those who crafted
our Constitution intended that there be two representatives from Congress, it would not have used
the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar Council, there will be representation from Congress
and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did
not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions
creating many other bodies in the Constitution.12

In other words, we could privilege or start our interpretation only from the preposition "a" and from
there provide a meaning that ensures a difficult and unworkable result -- one which undermines the
concept of a bicameral congress implied in all the other 114 other places in the Constitution that
uses the word "Congress".

Or, we could give the provision a reasonable interpretation that is within the expectations of the
people who ratified the Constitution by also seeing and reading the words "representative of
Congress" and "ex officio."

This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the
text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba
legis. But in doing so, we encounter an ambiguity.

In Macalintal v. Presidential Electoral Tribunal,13 we said:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution. In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied. Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:

It is a well-established rule in constitutional construction that no one provision of the Constitution is


to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory. (Emphasis provided)
And in Civil Liberties Union v. Executive Secretary,13 we said:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.

The authoritativeness of text is no excuse to provide an unworkable result or one which undermines
the intended structure of government provided in the Constitution. Text is authoritative, but it is not
exhaustive of the entire universe of meaning.

There is no compelling reason why we should blind ourselves as to the meaning of "representative
of Congress" and "ex officio." There is no compelling reason why there should only be one
representative of a bicameral Congress.

Proposed Reasons for Only One Representative of Congress

The first reason to support the need for only one representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar Council.

This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a
yes or a no. It is in this sense that a tie-breaker will be necessary.

However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide
the President with a shortlist of candidates to every judicial position. We take judicial notice that for
vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All
these votes are tallied and those who garner a specific plurality are thus put on the list and
transmitted to the President. There had been no occasion when the Judicial and Bar Council ever
needed to break a tie. The Judicial and Bar Council’s functions proceed regardless of whether they
have seven or eight members.

The second reason that the main opinion accepted as persuasive was the opinion that Congress
does not discharge its function to check and balance the power of both the Judiciary and the
Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the
Representative of Congress, who is ex officio, does not need to consult with Congress as a whole.

This is very perplexing and difficult to accept.

By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary
should be done by the Supreme Court. However, for judicial positions, this is vested in the
Executive. Furthermore, because of the importance of these appointments, the President’s
discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the
supervision of the Supreme Court but composed of several components.

The Judicial and Bar Council represents the constituents affected by judicial appointments and by
extension, judicial decisions. It provides for those who have some function vis a vis the law that
should be applied and interpreted by our courts. Hence, represented are practicing lawyers
(Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal
academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also
represented in some way are those that will be affected by the interpretation directly (private sector
representative).

Congress is represented for many reasons.

One, it crafts statutes and to that extent may want to ensure that those who are appointed to the
judiciary are familiar with these statutes and will have the competence, integrity, and independence
to read its meaning.

Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress,
therefore, has an interest in the judicial philosophy of those considered for appointment into our
judiciary.

Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders
including that of the President. Thus, it will have greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the independence required of our judges and
justices, the Members of Congress may be able to appreciate the kind of balance that will be
necessary -- the same balance that the President might be able to likewise appreciate -- when
putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they
embody it. Senators and Members of the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically submit themselves to the electorate.

It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be
instructed by their respective chambers to consider some principles and directions. Through
resolutions or actions by the Congressional Committees they represent, the JBC Congressional
representatives’ choices may be constrained. Therefore, they do not sit there just to represent
themselves. Again, they are "representatives of Congress" "ex officio".

The third reason to support only one representative of Congress is the belief that there is the
"unmistakable tenor" in the provision in question that one co-equal branch should be represented
only by one Representative.14 It may be true that the Secretary of Justice is the political alter ego of
the President or the Executive. However, Congress as a whole does not have a political alter ego. In
other words, while the Executive may be represented by a single individual, Congress cannot be
represented by an individual. Congress, as stated earlier, operates through the Senate and the
House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by
only one individual.

A Note on the Work of the Constitutional Commission

Time and again, we have clarified the interpretative value to Us of the deliberations of the
Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention ‘are of value as
showing the views of the individual members, and as indicating the reason for their votes, but they
give Us no light as to the views of the large majority who did not talk, much less of the mass or our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face.’The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the
framers’ understanding thereof.15 (Emphasis provided)

Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16

The intention of the framers of the Constitution, even assuming we could discover what it was, when
it is not adequately expressed in the Constitution, that is to say, what they meant when they did not
say it, surely that has no binding force upon us. If we look behind or beyond what they set down
in the document, prying into what else they wrote and what they said, anything we may find is
only advisory. They may sit in at our councils. There is no reason why we should eavesdrop
on theirs.17 (Emphasis provided)

In addition to the interpretative value of the discussion in the Constitutional Commission, we should
always be careful when we quote from their records without understanding their context.

The Committees of the Constitutional Commission were all tasked to finish their reports not later
than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August
15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of
formulating and polishing the style of the final draft of the new Constitution scheduled for submission
to the entire membership of the Commission not later than August 25, 1986.20

The Rules of the Constitutional Commission also provided for a process of approving resolutions
and amendments.

Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated from
a committee, the resolution was signed by its chairman.22 Resolutions were filed with the Secretary-
General.23 The First Reading took place when the titles of the resolutions were read and referred to
the appropriate committee.24

The Committees then submitted a Report on each resolution.25 The Steering Committee took charge
of including the committee report in the Calendar for Second Reading.26 The Second Reading took
place on the day set for the consideration of a resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there were any.28

A motion to close debate took place after three speeches for and two against, or if only one speech
has been raised and none against it.29 The President of the Constitutional Commission had the
prerogative to allow debates among those who had indicated that they intended to be heard on
certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider
the Committee amendments.31

After a resolution was approved on Second Reading, it was included in the Calendar for Third
Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third
Reading.33 All constitutional proposals approved by the Commission after Third Reading were
referred to the Committees on Sponsorship and Style for collation, organization, and consolidation
into a complete and final draft of the Constitution.34 The final draft was submitted to the Commission
for the sole purpose of determining whether it reflects faithfully and accurately the proposals as
approved on Second Reading.35

With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows:
On July 10, 1986, the Committee on the Judiciary presented its Report to the
Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14,
1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar
Council.37 The discussion spoke of the Judicial and Bar Council having seven members.

Numerous mentions of the Judicial and Bar Council being comprised of seven members were also
made by Commissioners on July 14, 1986. On the same day, the amended article was approved by
unanimous voting.38

On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place.39 The vote
was 43 and none against.40

Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21,
1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the
presentation and stated that they had a very difficult decision to make regarding bicameralism and
unicameralism.42 The debate occupied the Commission for the whole day.

Then, a vote on the structure of Congress took place.43 Forty four (44) commissioners cast their
votes during the roll call.44 The vote was 23 to 22.45

On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing
amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46

On October 9, 1986, the entire Article on the Legislature was approved on Third Reading.47

By October 10, 1986, changes in style on the Article on the Legislature were introduced.48

On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of
the Constitutional Commission, Cecilia Munoz-Palma.49

It is apparent that the Constitutional Commission either through the Style and Sponsorship
Committee or the Committees on the Legislature and the Judiciary was not able to amend the
provision concerning the Judicial and Bar Council after the Commission had decided to propose a
bicameral Congress. We can take judicial notice of the chronology of events during the deliberations
of the Constitutional Commission. The chronology should be taken as much as the substance of
discussions exchanged between the Commissioners.

The quotations from the Commissioners mentioned in the main opinion and in the proposed
resolution of the present Motion for Reconsideration should thus be appreciated in its proper context.

The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986
and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary.
Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about appointments of members of the Supreme
Court and of judges of lower courts. At present it is the President who appoints them. If there is a
Commission on Appointments, then it is the President with the confirmation of the Commission on
Appointments. In this proposal, we would like to establish a new office, a sort of a board composed
of seven members, called the Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this Council.

xxxx

MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four
of them who are the regular members.

xxxx

MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.51

xxxx

It must also be noted that during the same day and in the same discussion, both Commissioners
Rodrigo and Concepcion later on referred to a ‘National Assembly’ and not a ‘Congress,’ as can be
seen here:

MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact
rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary
provides:

The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court.

MR. CONCEPCION: Yes.

MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or
supplement the rules concerning the protection and enforcement of constitutional rights, pleading,
etc. — it must have the advice and concurrence of the Supreme Court.

MR. CONCEPCION: That is correct.52

On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the
exchange noted in the main opinion took place. Thus:

MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the
provision in the 1935 Constitution, Article VIII, Section 5.

xxxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this
will be a diminution of the appointing power of the highest magistrate of the land, of the President of
the Philippines elected by all the Filipino people. The appointing power will be limited by a group of
seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional
provisions on appointments. The members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the President except upon
recommendation or nomination of three names by this committee of seven people, commissioners of
the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors,
generals of the Army will not come under this restriction. Why are we going to segregate the
Judiciary from the rest of our government in the appointment of the high-ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our President
without being effective at all because this Council will be under the influence of the President. Four
out of seven are appointees of the President, and they can be reappointed when their term ends.
Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego
of the President. Another member represents the legislature. In all probability, the controlling party in
the legislature belongs to the President and, therefore, this representative from the National
Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that
even the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will
be influenced anyway by the President.53

It must again be noted that during this day and period of amendments after the quoted passage in
the Decision, the Commission later on made use of the term ‘National Assembly’ and not ‘Congress’
again:

MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last
sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National
Assembly at the opening of each regular session."

May I explain that I have gone over the operations of other deliberative assemblies in some parts of
the world, and I noticed that it is only the Chief Executive or head of state who addresses the
National Assembly at its opening. When we say "opening," we are referring to the first convening of
any national assembly. Hence, when the Chief Executive or head of state addresses the National
Assembly on that occasion, no other speaker is allowed to address the body.

So I move for the deletion of this last sentence.54

Based on the chronology of events, the discussions cited by the main ponencia took place when the
commissioners were still contemplating a unicameral legislature in the course of this discussion.
Necessarily, only one Representative would be needed to fully effect the participation of a
unicameral legislature. Therefore, any mention of the composition of the JBC having seven
members in the records of the Constitutional Commission, particularly during the dates cited, was
obviously within the context that the Commission had not yet voted and agreed upon a bicameral
legislature.

The composition of the Congress as a bilateral legislature became final only after the JBC
discussions as a seven-member Council indicated in the Records of the Constitutional Commission
took place. This puts into the proper context the recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of
this group is, that all the provisions that were being drafted up to that time assumed a unicameral
government.55

The repeated mentions of the JBC having seven members as indicated in the Records of the
Constitutional Commission do not justify the points raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve even as persuasive means to ascertain intent
at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not
relevant even to advise us on how Congress is to be represented in that constitutional organ.
We should never forget that when we interpret the Constitution, we do so with full appreciation of
every part of the text within an entire document understood by the people as they ratified it and with
all its contemporary consequences. As an eminent author in constitutional theory has observed while
going through the various interpretative modes presented in jurisprudence: "x x x all of the
methodologies that will be discussed, properly understood, figure in constitutional analysis as
opportunities: as starting points, constituent parts of complex arguments, or concluding
evocations." 56

Discerning that there should be a Senator and a Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial
activism. It is in keeping with the constitutional project of a bicameral Congress that is effective
whenever and wherever it is represented. It is in tune with how our people understand Congress as
described in the fundamental law. It is consistent with our duty to read the authoritative text of the
Constitution so that ordinary people who seek to understand this most basic law through Our
decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in
Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be
given full effect.

In a sense, we do not just read words in a legal document; we give meaning to a Constitution.

For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of
merit.

MARVIC MARIO VICTOR F. LEONEN


Associate Justice

Footnotes

1
CONSTITUTION, Art. VI, Sec. 2.

2
CONSTITUTION, Art. VI, Sec. 5 (1).

3
CONSTITUTION, Art. VI, Sec. 5 (2). See also the recent case of Atong Paglaum v.
COMELEC et al., G.R. No. 203766, for the most recent discussion on the nature of the party
list system.

4
The term of a senator is six years, extendible for another term. CONSTITUTION, Art. VI,
Sec. 4.

5
The term of a member of the House of Representatives is three years, and may be
extendible for three consecutive terms. CONSTITUTION, Art. VI, Sec. 7.

6
CONSTITUTION, Art. VI, Sec. 16.

7
CONSTITUTION, Art. VI, Sec. 16 (1).

8
CONSTITUTION, Art. VI, Sec. 16 (4), par. (1).
9
CONSTITUTION, Art. VI, Sec. 16 (4), par. (2).

10
CONSTITUTION, Art. VI, Sec. 16 (3).

11
II RECORD, CONSTITUTIONAL COMMISSION 63 (July 21, 1986).

12
CONSTITUTION, Art. VI, Sec. 2: The Senate shall be composed of twenty-four Senators
who shall be elected at large by the qualified voters of the Philippines, as may be provided
by law.;

Art. VI, Sec. 5: The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law...;

Art. VI, Sec. 17: The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral Tribunal shall
be composed of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six shall be Members
of the Senate or the House of Representatives, as the case may be…;

Art. VI, Sec. 18: There shall be a Commission on Appointments consisting of the
President of the Senate, as ex officio Chairman, twelve Senators, and twelve
Members of the House of Representatives, elected by each House on the basis of
proportional representation from the political parties and parties or organizations
registered under the party-list system represented therein.;

Art. VIII, Sec. 4.1: The Supreme Court shall be composed of a Chief Justice and
fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members...;

Art. IX (B), Sec. 1: The civil service shall be administered by the Civil Service
Commission composed of a Chairman and two Commissioners...;

Art. IX (C), Sec. 1: There shall be a Commission on Elections composed of a


Chairman and six Commissioners...;

Art. IX (D), Sec. 1: There shall be a Commission on Audit composed of a Chairman


and two Commissioners...;

Art. XI, Sec. 11: There is hereby created the independent Office of the Ombudsman,
composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.;

Art. XII, Sec. 17 (2): The Commission [on Human Rights] shall be composed of a
Chairman and four Members who must be natural-born citizens of the Philippines
and a majority of whom shall be members of the Bar.

13
Atty. Romulo A. Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November
23, 2010, 635 SCRA 783, 797-799.
13
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1981, 194
SCRA 317, 325.

14
Francisco I. Chavez v. Judicial and Bar Council, Sen. Francis Joseph G. Escudero and
Rep. Neil C. Tupas, Jr., G.R. No. 202242, July 17, 2012, p. 18.

15
Civil Liberties Union v. Executive Secretary, supra at 337.

16
Charles P. Curtis. LIONS UNDER THE THRONE 2, Houghton Mifflin, 1947.

17
Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412 Phil. 308, 363
(2001).

18
I RECORD, CONSTITUTIONAL COMMISSION Appendix 2, p. 1900, (July 10, 1986),
PROPOSED RESOLUTION NO. 50, RESOLUTION PROVIDING FOR THE RULES OF THE
CONSTITUTIONAL COMMISSION (PROPOSED RESOLUTION NO. 50), Rule II, Sec. 9.

19
Proposed Resolution No. 50, Rule II, Sec. 9.

20
Proposed Resolution No. 50, Rule II, Sec. 9.

21
Proposed Resolution No. 50, Rule IV, Sec. 20.

22
Proposed Resolution No. 50, Rule IV, Sec. 20.

23
Proposed Resolution No. 50, Rule IV, Sec. 20.

24
Proposed Resolution No. 50, Rule IV, Sec. 21.

25
Proposed Resolution No. 50, Rule IV, Sec. 22.

26
Proposed Resolution No. 50, Rule IV, Sec. 22.

27
Proposed Resolution No. 50, Rule IV, Sec. 23.

28
Proposed Resolution No. 50, Rule IV, Sec. 23.

29
Proposed Resolution No. 50, Rule IV, Sec. 24.

30
Proposed Resolution No. 50, Rule IV, Sec. 25.

31
Proposed Resolution No. 50, Rule IV, Sec. 26.

32
Proposed Resolution No. 50, Rule IV, Sec. 27.

33
Proposed Resolution No. 50, Rule IV, Sec. 27.

34
Proposed Resolution No. 50, Rule IV, Sec. 29.

35
Proposed Resolution No. 50, Rule IV, Sec. 29.
36
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,
1986).

37
I RECORD, CONSTITUTIONAL COMMISSION, RECORD NO. 27 (Thursday, July 10,
1986).

38
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,
1986).

39
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,
1986).

40
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,
1986).

41
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,
1986), which reads:

RECONSIDERATION AND APPROVAL, ON THIRD READING, OF THE ARTICLE


ON THE JUDICIARY. On motion of Mr. Bengzon, there being no objection, the Body
reconsidered the approval, on Third Reading, of the Article on the Judiciary, to afford
the other Members opportunity to cast their votes. Thereupon, upon direction of the
Chair, the Secretary-General called the Roll for nominal voting and the following
Members cast an affirmative vote:

Abubakar

Alonto

Azcuna

Natividad

Tadeo

With 5 additional affirmative votes, making a total of 43 Members voting in favor and
none against, the Chair declared the Article on the Judiciary approved on Third
Reading.

42
I RECORD, CONSTITUTIONAL COMMISSION, NO. 35 (Monday, July 21, 1986), which
reads in part:

MR. DAVIDE:

xxx

A Unicameral Structure of the National Assembly. — In the records of the 1935 and
1971 Constitutional Conventions, and now the 1986 Constitutional Commission,
advocates of unicameralism and bicameralism have eloquently discoursed on the
matter. The draft proposal of the 1986 UP Law Constitution Project analyzes
exhaustively the best features and the disadvantages of each. Our people, having
experienced both systems, are faced with a difficult decision to make.

Madam President and my dear colleagues, even in our own Committee, I had to
break the tie in favor of unicameralism. Commissioner Sarmiento, in his Resolution
No. 396, aptly stated that the Philippines needs a unicameral legislative assembly
which is truly representative of the people, responsive to their needs and welfare,
economical to maintain and efficient and effective in the exercise of its powers,
functions and duties in the discharge of its responsibilities. Commissioner Tingson,
however, said that despite its simplicity of organization, resulting in economy and
efficiency, and achieving a closer relationship between the legislative and executive,
it also resulted in the authoritarian manipulation by the Chief Executive, depriving in
the process the people from expressing their true sentiments through their chosen
representatives. Thus, under Resolution No. 321, Commissioner Tingson calls for the
restoration of the bicameral form of legislature to maximize the participation of people
in decision-making.

43
I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986).

44
I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986), which reads in part:

xxx

With 22 Members voting for a unicameral system and 23 Members voting for
bicameralism, the Body approved the proposal for a bicameral legislature.

45
Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995, pp. 310-
311.

46
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 102 (Tuesday and
Wednesday, October 7 and 8, 1987).

47
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 103 (Thursday, October
9, 1986), which reads in part:

xxx

With 29 Members voting in favor, none against and 7 abstentions, the Body
approved, on Third Reading, the Article on the Legislative.

48
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 104 (Friday, October
10, 1986).

49
V, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 109 (Wednesday,
October 15, 1986), which reads in part:

xxx
MR. GUINGONA: Madam President, I have the honor on behalf of the Sponsorship
Committee to officially announce that on October 12, the 1986 Constitutional
Commission had completed under the able, firm and dedicated leadership of our
President, the Honorable Cecilia Muñoz Palma, the task of drafting a Constitution for
our people, a Constitution reflective of the spirit of the time — a spirit of nationalism,
a spirit of dedication to the democratic way of life, a spirit of liberation and rising
expectations, a spirit of confidence in the Filipino. On that day, Madam President, the
Members of this Constitutional Commission had approved on Third Reading the draft
Constitution of the Republic of the Philippines — a practical instrument suited to the
circumstances of our time but which is broad enough to allow future generations to
respond to challenges which we of this generation could not foretell, a Charter which
would seek to establish in this fair land a community characterized by social
progress, political stability, economic prosperity, peace, justice and freedom for all…

50
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986) AND I RECORD,
CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

51
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

52
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

53
I RECORD, CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

54
I RECORD, CONSTITUTIONAL COMMISSION 510 (July 14, 1986).

55
II RECORD, CONSTITUTIONAL COMMISSION 434 (July 30, 1986).

56
Lawrence Tribe, as cited in It is a Constitution We Are Expounding, p. 21 (2009),
previously published in AMERICAN CONSTITUTIONAL LAW, Chapter 1: Approaches to
Constitutional Analysis (3rd ed.2000).

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,


vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1âwphi1

was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function – to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.
SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO


Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD


Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE


Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, T hereby certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO


Chief Justice

Footnotes

1
Rollo, pp. 257-286.

2
Id. at 287-298.
3
Entitled "Resolution expressing the sense of the Senate that the Judicial and Bar Council
(JBC) defer the consideration of all nominees and the preparation of the short list to be
submitted to the President for the position of Chief Justice of the Supreme Court;" id. at 303-
304.

4
Entitled "Resolution expressing anew the sense of the Senate that the Senate and House
of Representatives should have one (1) representative each in the Judicial and Bar Council
(JBC) and that each representative is entitled to a full vote;" id. at 305-307.

5
Entitled "Resolution to file an urgent motion with the Supreme Court to set for oral argument
the motion for reconsideration filed by the representatives of Congress to the Judicial and
Bar Council (JBC) in the case of Francisco Chavez v. Judicial and Bar Council, Sen. Francis
Joseph G.. Escudero and Rep. Niel Tupas Jr., G.R. No. 2022242 considering the primordial
importance of the constitutional issues involved;" id. at 308-310.

6
Entitled "Resolution authorizing Senator Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for reconsideration filed by the representative of the Senate to
the Judicial and Bar Council in the case of Francisco Chavez v. Judicial and Bar Council,
Sen. Francis Joseph G. Escudero and Rep. Niel Tupas, Jr.;" id. at 311-312.

7
Id. at 313-314.

8
Id. at (318-I)-(318-K).

9
Id. at 318-J.

10
Petitioner’s Memorandum, id. at 326-380; Respondents’ Memorandum, id. at 381-424.

11
Malolos Constitution Article 80 Title X. – The Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the National Assembly in concurrence with the
President of the Republic and the Secretaries of the Government, and shall be absolutely
independent of the Legislative and Executive Powers."

12
1935 Constitution Article VIII, Section 5. – The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the
Commission on Appointments."

13
1 Records of the Constitutional Commission Proceedings and Debates, 437.

14
Section 4 Article X of the 1973 Constitution provides: "The Members of the Supreme Court
and judges of inferior courts shall be appointed by the President."

15
1 Records, Constitutional Commission, Proceedings and Debates, p. 487.

16
List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp.
62-63.

17
Id.
18
Id. at 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and
Minutes of the 12th En Banc Meeting, May 30, 2001.

19
Malcolm, The Constitutional Law of the Philippine Islands (2nd ed. 1926), p. 26.

20
1987 Constitution, Article VII, Section 4. – The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall begin at noon on the
thirtieth day of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any re-election. No person
who has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time.

xxx

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

x x x.

21
1987 Constitution, Article VII, Section 9. – Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President shall nominate a
Vice-President from among the Members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately. (Emphasis supplied)

22
1987 Constitution, Article VII, 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. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it. (Emphasis supplied)

23
1987 Constitution, Article VI Section 27(1). – Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he approves the same, he shall
sign it; otherwise, he shall veto it and return the same with his objections to the House where
it originated, which shall enter the objections at large in its Journal and proceed to reconsider
it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each House shall be determined by yeas
or nays, and the names of the Members voting for or against shall be entered in its Journal.
The President shall communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had
signed it.

24
1987 Constitution, Article VI Section 24. – All appropriation, revenue or tariff bills, bills
authorizing increase of public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or concur with
amendments.

25
1987 Constitution, Article VI Section 23 (1). – The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.

26
1987 Constitution, Article VII Section 4. – The returns of every election for President and
Vice-President, duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the votes.

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

27
1987 Constitution, Article XI Section 3 (1). – The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.

xxx

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.

28
Dated March 27, 2007; Annex "D," rollo, p. 104.

29
Annex C, id. at 95. Quoting the interpretation of Article VIII, Section (1) of the Constitution
by Fr. Joaquin Bernas in page 984 of his book, The 1987 Constitution of the Republic of the
Philippines, A Commentary. He quoted another author, Hector de Leon, and portions of the
decisions of this Court in Flores v. Drilon, and Escalante v. Santos, before extensively
quoting the Record of the Constitutional Commission of 1986 (pages 444 to 491).

30
Annex "E," id. at 1205.

31
Rollo, pp. 91-93.

32
G.R. No. 166006, March 14, 2008, 548 SCRA 485.

33
Id. at 516-517. (Citations omitted.)
34
Black’s Law Dictionary, Fifth ed., p. 198.

35
Agpalo, Statutory Construction, 2009 ed., p. 231.

36
Id., citing Cartwrite v. Cartwrite, 40 A2d 30, 155 ALR 1088 (1944).

37
Id., Agpalo, p. 232

38
Dissenting Opinion, Chief Justice Panganiban, Central Bank (Now Bangko Sentral Ng
Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, citing Peralta v. COMELEC. No. L-47771, March 11,
1978, 82 SCRA 30, 77, citing concurring and dissenting opinion of former Chief Justice
Fernando, citing Malcolm.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

On July 17, 2012, the Court rendered a Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring
that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The
Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a
representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987
Constitution.

On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral
arguments on the following Issues:

1. Whether or not the current practice of the JBC to perform its functions with eight members, two of
whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of
the 1987 Constitution.

A. Whether or not the JBC should be composed of seven members only.

B. Whether or not Congress is entitled to more than one seat in the JBC.

C. Assuming Congress is entitled to more than one seat, whether or not each representative of
Congress should be entitled to exercise one whole vote.

I maintain my dissent to the majority opinion now being reconsidered.


To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House
of Representatives are entitled to one representative each in the JBC, both with the right to cast one
full vote in its deliberations.

At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which
provides that:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(Emphasis supplied)

In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular
letter "a" to describe "representative of the Congress," the Filipino people through the framers of the
1987 Constitution intended Congress to just have one representative in the JBC. The majority
opinion added that there could not have been any plain oversight in the wordings of the provision
since the other provisions of the 1987 Constitution were amended accordingly with the shift to a
bicameral legislative body.

The mere fact, however, that adjustments were made in some provisions should not mislead the
Court into concluding that all provisions have been amended to recognize the bicameral nature of
Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of
the Constitutional Commission himself, admitted that the committee charged with making
adjustments in the previously passed provisions covering the JBC, failed to consider the impact of
the changed character of the Legislature on the inclusion of "a representative of the Congress" in the
membership of the JBC.3

Indeed, to insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and
distinct from each other although they are both involved in law-making. Both legislators are elected
differently, maintain separate administrative organizations, and deliberate on laws independently. In
fact, neither the Senate nor the House of Representatives can by itself claim to represent the
Congress.

Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just
either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While
the provision provides for just "a representative of the Congress," it also provides that such
representation is "ex officio" or "by virtue of one's office, or position."4

Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate
representative to the JBC. In the same way, under the House of Representatives rules, the
Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there
are actually two persons in Congress who hold separate offices or positions with the attached
function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no
representative from Congress will qualify as "ex officio" member of the JBC. This would deny
Congress the representation that the framers of the 1987 Constitution intended it to have.

Having said that the Senate and the House of Representatives should have one representative each
in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its
deliberations. To split the vote between the two legislators would be an absurdity since it would
diminish their standing and make them second class members of the JBC, something that the
Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on
January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by
recognizing this right can the true spirit and reason of Section 8(1) be attained.

For the above reasons, I vote to GRANT the motion for reconsideration.

ROBERTO A. ABAD
Associate Justice

Footnotes

1
Rollo, pp. 226-250.

2
Id. at 257-284.

3
http://opinion.inquirer.net/31813/jbc-odds-and-ends (last accessed February 15, 2013).

4
Webster's New World College Dictionary, 3rd Edition, p. 477.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

LEONEN, J.:

I dissent.

Both the Senate and the House of Representatives must be represented in the Judicial and Bar
Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and
contemporary understanding of our people of the structure of our government. Any other
interpretation diminishes Congress and negates the effectivity of its representation in the Judicial
and Bar Council.

It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to
ensure that the constitutional project ratified by our people is given full effect.

At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides
the following:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of
the private sector. (Emphasis provided)

Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the
article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase
includes the words "representative of Congress" and "ex officio Members." In the context of the
constitutional plan involving a bicameral Congress, these words create ambiguity.

A Bicameral Congress

Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives x x x. (Emphasis provided)

Senators are "elected at large by the qualified voters of the Philippines".1 Members of the House of
Representatives, on the other hand, are elected by legislative districts2 or through the party list
system.3 The term of a Senator4 is different from that of a Member of the House of
Representatives.5 Therefore, the Senate and the House of Representatives while component parts
of the Congress are not the same in terms of their representation. The very rationale of a bicameral
system is to have the Senators represent a national constituency. Representatives of the House of
Representatives, on the other hand, are dominantly from legislative districts except for one fifth
which are from the party list system.

Each chamber is organized separately.6 The Senate and the House each promulgates their own
rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records
of their proceedings.9 The Senate and the House of Representatives discipline their own respective
members.10

To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a
Senate President and a Speaker of the House of Representatives. There is no single journal for the
Congress of the Philippines, but there is a journal for the Senate and a journal for the House of
Representatives. There is no record of proceedings for the entire Congress of the Philippines, but
there is a Record of proceedings for the Senate and a Record of proceedings for the House of
Representatives. The Congress of the Philippines does not discipline its members. It is the Senate
that promulgates its own rules and disciplines its members. Likewise, it is the House that
promulgates its own rules and disciplines its members.

No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No
Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or
she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the
Senate. By constitutional design, he or she cannot get instructions from the House of
Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she
must be open to amend or modify the instructions given to him or her by the Senate if the House of
Representatives’ instructions are different. Yet, the Constitution vests disciplinary power only on the
Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House of
Representatives may carry instructions from the Senate. Neither Senator nor Member of the House
of Representatives may therefore represent Congress as a whole.

The difference between the Senate and the House of Representative was a subject of discussion in
the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission,
Commissioner Jose F. S. Bengzon presented the following argument during the discussion on
bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino
people in making these officials accountable:

I grant the proposition that the Members of the House of Representatives are closer to the people
that they represent. I grant the proposition that the Members of the House of Representatives
campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant
the proposition that the candidates for Senator do not have as much time to mingle around with their
constituencies in their respective home bases as the candidates for the House. I also grant the
proposition that the candidates for the Senate go around the country in their efforts to win the votes
of all the members of the electorate at a lesser time than that given to the candidates for the House
of Representatives. But then the lesson of the last 14 years has made us mature in our political
thinking and has given us political will and self-determination. We really cannot disassociate the fact
that the Congressman, the Member of the House of Representatives, no matter how national he
would like to think, is very much strongly drawn into the problems of his local constituents in his own
district.

Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people
power, I believe that this so-called people power can be used to monitor not only the Members of the
House of Representatives but also the Members of the Senate. As I said we may have probably
adopted the American formula in the beginning but over these years, I think we have developed that
kind of a system and adopted it to our own needs. So at this point in time, with people power
working, it is not only the Members of the House who can be subjected to people power but also the
Members of the Senate because they can also be picketed and criticized through written articles and
talk shows. And even the people not only from their constituencies in their respective regions and
districts but from the whole country can exercise people power against the Members of the Senate
because they are supposed to represent the entire country. So while the Members of Congress
become unconsciously parochial in their desire to help their constituencies, the Members of the
Senate are there to take a look at all of these parochial proposals and coordinate them with the
national problems. They may be detached in that sense but they are not detached from the people
because they themselves know and realize that they owe their position not only to the people from
their respective provinces but also to the people from the whole country. So, I say that people power
now will be able to monitor the activities of the Members of the House of Representatives and that
very same people power can be also used to monitor the activities of the Members of the Senate.11

Commissioner Bengzon provided an illustration of the fundamental distinction between the House of
Representatives and the Senate, particularly regarding their respective constituencies and
electorate. These differences, however, only illustrate that the work of the Senate and the House of
Representatives taken together results in a Congress functioning as one branch of government.
Article VI, Section 1, as approved by the Commission, spoke of one Congress whose powers are
vested in both the House of Representatives and the Senate.
Thus, when the Constitution provides that a "representative of Congress" should participate in the
Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a
Member of the House of Representative carrying out instructions from the Senate. It is not the kind
of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a
Member of the House of Representative may represent the Congress as a whole is contrary to the
intent of the Constitution. It is unworkable.

One mechanism used in the past to work out the consequence of the majority’s opinion is to allow a
Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to
each allow them only half a vote.

Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice
is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector,
legal academia, and retired justices. Each of these sectors are given equal importance and
rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the
wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty
percent of these institutions.

This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution
granting awesome powers to Congress, intended to diminish its component parts. After all, they are
institutions composed of people who have submitted themselves to the electorate. In creating
shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less
than the input of the professor of law or the member of the Integrated Bar of the Philippines or the
member from the private sector.

The other solution done in the past was to alternate the seat between a Senator and a Member of
the House of Representatives.

To alternate the seat given to Congress between the Senate and the House of Representatives
would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she
represents the Senate and not Congress as a whole. When a Member of the House of
Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the
seat not only diminishes congressional representation; it negates it.

Constitutional Interpretation

The argument that swayed the majority in this case’s original decision was that if those who crafted
our Constitution intended that there be two representatives from Congress, it would not have used
the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar Council, there will be representation from Congress
and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did
not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions
creating many other bodies in the Constitution.12

In other words, we could privilege or start our interpretation only from the preposition "a" and from
there provide a meaning that ensures a difficult and unworkable result -- one which undermines the
concept of a bicameral congress implied in all the other 114 other places in the Constitution that
uses the word "Congress".

Or, we could give the provision a reasonable interpretation that is within the expectations of the
people who ratified the Constitution by also seeing and reading the words "representative of
Congress" and "ex officio."
This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the
text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba
legis. But in doing so, we encounter an ambiguity.

In Macalintal v. Presidential Electoral Tribunal,13 we said:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution. In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied. Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:

It is a well-established rule in constitutional construction that no one provision of the Constitution is


to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory. (Emphasis provided)

And in Civil Liberties Union v. Executive Secretary,13 we said:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.

The authoritativeness of text is no excuse to provide an unworkable result or one which undermines
the intended structure of government provided in the Constitution. Text is authoritative, but it is not
exhaustive of the entire universe of meaning.
There is no compelling reason why we should blind ourselves as to the meaning of "representative
of Congress" and "ex officio." There is no compelling reason why there should only be one
representative of a bicameral Congress.

Proposed Reasons for Only One Representative of Congress

The first reason to support the need for only one representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar Council.

This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a
yes or a no. It is in this sense that a tie-breaker will be necessary.

However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide
the President with a shortlist of candidates to every judicial position. We take judicial notice that for
vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All
these votes are tallied and those who garner a specific plurality are thus put on the list and
transmitted to the President. There had been no occasion when the Judicial and Bar Council ever
needed to break a tie. The Judicial and Bar Council’s functions proceed regardless of whether they
have seven or eight members.

The second reason that the main opinion accepted as persuasive was the opinion that Congress
does not discharge its function to check and balance the power of both the Judiciary and the
Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the
Representative of Congress, who is ex officio, does not need to consult with Congress as a whole.

This is very perplexing and difficult to accept.

By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary
should be done by the Supreme Court. However, for judicial positions, this is vested in the
Executive. Furthermore, because of the importance of these appointments, the President’s
discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the
supervision of the Supreme Court but composed of several components.

The Judicial and Bar Council represents the constituents affected by judicial appointments and by
extension, judicial decisions. It provides for those who have some function vis a vis the law that
should be applied and interpreted by our courts. Hence, represented are practicing lawyers
(Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal
academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also
represented in some way are those that will be affected by the interpretation directly (private sector
representative).

Congress is represented for many reasons.

One, it crafts statutes and to that extent may want to ensure that those who are appointed to the
judiciary are familiar with these statutes and will have the competence, integrity, and independence
to read its meaning.

Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress,
therefore, has an interest in the judicial philosophy of those considered for appointment into our
judiciary.
Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders
including that of the President. Thus, it will have greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the independence required of our judges and
justices, the Members of Congress may be able to appreciate the kind of balance that will be
necessary -- the same balance that the President might be able to likewise appreciate -- when
putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they
embody it. Senators and Members of the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically submit themselves to the electorate.

It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be
instructed by their respective chambers to consider some principles and directions. Through
resolutions or actions by the Congressional Committees they represent, the JBC Congressional
representatives’ choices may be constrained. Therefore, they do not sit there just to represent
themselves. Again, they are "representatives of Congress" "ex officio".

The third reason to support only one representative of Congress is the belief that there is the
"unmistakable tenor" in the provision in question that one co-equal branch should be represented
only by one Representative.14 It may be true that the Secretary of Justice is the political alter ego of
the President or the Executive. However, Congress as a whole does not have a political alter ego. In
other words, while the Executive may be represented by a single individual, Congress cannot be
represented by an individual. Congress, as stated earlier, operates through the Senate and the
House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by
only one individual.

A Note on the Work of the Constitutional Commission

Time and again, we have clarified the interpretative value to Us of the deliberations of the
Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention ‘are of value as
showing the views of the individual members, and as indicating the reason for their votes, but they
give Us no light as to the views of the large majority who did not talk, much less of the mass or our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face.’The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the
framers’ understanding thereof.15 (Emphasis provided)

Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16

The intention of the framers of the Constitution, even assuming we could discover what it was, when
it is not adequately expressed in the Constitution, that is to say, what they meant when they did not
say it, surely that has no binding force upon us. If we look behind or beyond what they set down
in the document, prying into what else they wrote and what they said, anything we may find is
only advisory. They may sit in at our councils. There is no reason why we should eavesdrop
on theirs.17 (Emphasis provided)

In addition to the interpretative value of the discussion in the Constitutional Commission, we should
always be careful when we quote from their records without understanding their context.
The Committees of the Constitutional Commission were all tasked to finish their reports not later
than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August
15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of
formulating and polishing the style of the final draft of the new Constitution scheduled for submission
to the entire membership of the Commission not later than August 25, 1986.20

The Rules of the Constitutional Commission also provided for a process of approving resolutions
and amendments.

Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated from
a committee, the resolution was signed by its chairman.22 Resolutions were filed with the Secretary-
General.23 The First Reading took place when the titles of the resolutions were read and referred to
the appropriate committee.24

The Committees then submitted a Report on each resolution.25 The Steering Committee took charge
of including the committee report in the Calendar for Second Reading.26 The Second Reading took
place on the day set for the consideration of a resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there were any.28

A motion to close debate took place after three speeches for and two against, or if only one speech
has been raised and none against it.29 The President of the Constitutional Commission had the
prerogative to allow debates among those who had indicated that they intended to be heard on
certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider
the Committee amendments.31

After a resolution was approved on Second Reading, it was included in the Calendar for Third
Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third
Reading.33 All constitutional proposals approved by the Commission after Third Reading were
referred to the Committees on Sponsorship and Style for collation, organization, and consolidation
into a complete and final draft of the Constitution.34 The final draft was submitted to the Commission
for the sole purpose of determining whether it reflects faithfully and accurately the proposals as
approved on Second Reading.35

With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows:

On July 10, 1986, the Committee on the Judiciary presented its Report to the
Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14,
1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar
Council.37 The discussion spoke of the Judicial and Bar Council having seven members.

Numerous mentions of the Judicial and Bar Council being comprised of seven members were also
made by Commissioners on July 14, 1986. On the same day, the amended article was approved by
unanimous voting.38

On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place.39 The vote
was 43 and none against.40

Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21,
1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the
presentation and stated that they had a very difficult decision to make regarding bicameralism and
unicameralism.42 The debate occupied the Commission for the whole day.
Then, a vote on the structure of Congress took place.43 Forty four (44) commissioners cast their
votes during the roll call.44 The vote was 23 to 22.45

On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing
amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46

On October 9, 1986, the entire Article on the Legislature was approved on Third Reading.47

By October 10, 1986, changes in style on the Article on the Legislature were introduced.48

On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of
the Constitutional Commission, Cecilia Munoz-Palma.49

It is apparent that the Constitutional Commission either through the Style and Sponsorship
Committee or the Committees on the Legislature and the Judiciary was not able to amend the
provision concerning the Judicial and Bar Council after the Commission had decided to propose a
bicameral Congress. We can take judicial notice of the chronology of events during the deliberations
of the Constitutional Commission. The chronology should be taken as much as the substance of
discussions exchanged between the Commissioners.

The quotations from the Commissioners mentioned in the main opinion and in the proposed
resolution of the present Motion for Reconsideration should thus be appreciated in its proper context.

The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986
and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary.
Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about appointments of members of the Supreme
Court and of judges of lower courts. At present it is the President who appoints them. If there is a
Commission on Appointments, then it is the President with the confirmation of the Commission on
Appointments. In this proposal, we would like to establish a new office, a sort of a board composed
of seven members, called the Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this Council.

xxxx

MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four
of them who are the regular members.

xxxx

MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.51

xxxx

It must also be noted that during the same day and in the same discussion, both Commissioners
Rodrigo and Concepcion later on referred to a ‘National Assembly’ and not a ‘Congress,’ as can be
seen here:
MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact
rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary
provides:

The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court.

MR. CONCEPCION: Yes.

MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or
supplement the rules concerning the protection and enforcement of constitutional rights, pleading,
etc. — it must have the advice and concurrence of the Supreme Court.

MR. CONCEPCION: That is correct.52

On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the
exchange noted in the main opinion took place. Thus:

MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the
provision in the 1935 Constitution, Article VIII, Section 5.

xxxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this
will be a diminution of the appointing power of the highest magistrate of the land, of the President of
the Philippines elected by all the Filipino people. The appointing power will be limited by a group of
seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional
provisions on appointments. The members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the President except upon
recommendation or nomination of three names by this committee of seven people, commissioners of
the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors,
generals of the Army will not come under this restriction. Why are we going to segregate the
Judiciary from the rest of our government in the appointment of the high-ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our President
without being effective at all because this Council will be under the influence of the President. Four
out of seven are appointees of the President, and they can be reappointed when their term ends.
Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego
of the President. Another member represents the legislature. In all probability, the controlling party in
the legislature belongs to the President and, therefore, this representative from the National
Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that
even the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will
be influenced anyway by the President.53

It must again be noted that during this day and period of amendments after the quoted passage in
the Decision, the Commission later on made use of the term ‘National Assembly’ and not ‘Congress’
again:
MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last
sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National
Assembly at the opening of each regular session."

May I explain that I have gone over the operations of other deliberative assemblies in some parts of
the world, and I noticed that it is only the Chief Executive or head of state who addresses the
National Assembly at its opening. When we say "opening," we are referring to the first convening of
any national assembly. Hence, when the Chief Executive or head of state addresses the National
Assembly on that occasion, no other speaker is allowed to address the body.

So I move for the deletion of this last sentence.54

Based on the chronology of events, the discussions cited by the main ponencia took place when the
commissioners were still contemplating a unicameral legislature in the course of this discussion.
Necessarily, only one Representative would be needed to fully effect the participation of a
unicameral legislature. Therefore, any mention of the composition of the JBC having seven
members in the records of the Constitutional Commission, particularly during the dates cited, was
obviously within the context that the Commission had not yet voted and agreed upon a bicameral
legislature.

The composition of the Congress as a bilateral legislature became final only after the JBC
discussions as a seven-member Council indicated in the Records of the Constitutional Commission
took place. This puts into the proper context the recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of
this group is, that all the provisions that were being drafted up to that time assumed a unicameral
government.55

The repeated mentions of the JBC having seven members as indicated in the Records of the
Constitutional Commission do not justify the points raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve even as persuasive means to ascertain intent
at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not
relevant even to advise us on how Congress is to be represented in that constitutional organ.

We should never forget that when we interpret the Constitution, we do so with full appreciation of
every part of the text within an entire document understood by the people as they ratified it and with
all its contemporary consequences. As an eminent author in constitutional theory has observed while
going through the various interpretative modes presented in jurisprudence: "x x x all of the
methodologies that will be discussed, properly understood, figure in constitutional analysis as
opportunities: as starting points, constituent parts of complex arguments, or concluding
evocations." 56

Discerning that there should be a Senator and a Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial
activism. It is in keeping with the constitutional project of a bicameral Congress that is effective
whenever and wherever it is represented. It is in tune with how our people understand Congress as
described in the fundamental law. It is consistent with our duty to read the authoritative text of the
Constitution so that ordinary people who seek to understand this most basic law through Our
decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in
Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be
given full effect.
In a sense, we do not just read words in a legal document; we give meaning to a Constitution.

For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of
merit.

MARVIC MARIO VICTOR F. LEONEN


Associate Justice

Footnotes

1
CONSTITUTION, Art. VI, Sec. 2.

2
CONSTITUTION, Art. VI, Sec. 5 (1).

3
CONSTITUTION, Art. VI, Sec. 5 (2). See also the recent case of Atong Paglaum v.
COMELEC et al., G.R. No. 203766, for the most recent discussion on the nature of the party
list system.

4
The term of a senator is six years, extendible for another term. CONSTITUTION, Art. VI,
Sec. 4.

5
The term of a member of the House of Representatives is three years, and may be
extendible for three consecutive terms. CONSTITUTION, Art. VI, Sec. 7.

6
CONSTITUTION, Art. VI, Sec. 16.

7
CONSTITUTION, Art. VI, Sec. 16 (1).

8
CONSTITUTION, Art. VI, Sec. 16 (4), par. (1).

9
CONSTITUTION, Art. VI, Sec. 16 (4), par. (2).

10
CONSTITUTION, Art. VI, Sec. 16 (3).

11
II RECORD, CONSTITUTIONAL COMMISSION 63 (July 21, 1986).

12
CONSTITUTION, Art. VI, Sec. 2: The Senate shall be composed of twenty-four Senators
who shall be elected at large by the qualified voters of the Philippines, as may be provided
by law.;

Art. VI, Sec. 5: The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law...;

Art. VI, Sec. 17: The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral Tribunal shall
be composed of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six shall be Members
of the Senate or the House of Representatives, as the case may be…;

Art. VI, Sec. 18: There shall be a Commission on Appointments consisting of the
President of the Senate, as ex officio Chairman, twelve Senators, and twelve
Members of the House of Representatives, elected by each House on the basis of
proportional representation from the political parties and parties or organizations
registered under the party-list system represented therein.;

Art. VIII, Sec. 4.1: The Supreme Court shall be composed of a Chief Justice and
fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members...;

Art. IX (B), Sec. 1: The civil service shall be administered by the Civil Service
Commission composed of a Chairman and two Commissioners...;

Art. IX (C), Sec. 1: There shall be a Commission on Elections composed of a


Chairman and six Commissioners...;

Art. IX (D), Sec. 1: There shall be a Commission on Audit composed of a Chairman


and two Commissioners...;

Art. XI, Sec. 11: There is hereby created the independent Office of the Ombudsman,
composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.;

Art. XII, Sec. 17 (2): The Commission [on Human Rights] shall be composed of a
Chairman and four Members who must be natural-born citizens of the Philippines
and a majority of whom shall be members of the Bar.

13
Atty. Romulo A. Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November
23, 2010, 635 SCRA 783, 797-799.

13
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1981, 194
SCRA 317, 325.

14
Francisco I. Chavez v. Judicial and Bar Council, Sen. Francis Joseph G. Escudero and
Rep. Neil C. Tupas, Jr., G.R. No. 202242, July 17, 2012, p. 18.

15
Civil Liberties Union v. Executive Secretary, supra at 337.

16
Charles P. Curtis. LIONS UNDER THE THRONE 2, Houghton Mifflin, 1947.

17
Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412 Phil. 308, 363
(2001).

18
I RECORD, CONSTITUTIONAL COMMISSION Appendix 2, p. 1900, (July 10, 1986),
PROPOSED RESOLUTION NO. 50, RESOLUTION PROVIDING FOR THE RULES OF THE
CONSTITUTIONAL COMMISSION (PROPOSED RESOLUTION NO. 50), Rule II, Sec. 9.
19
Proposed Resolution No. 50, Rule II, Sec. 9.

20
Proposed Resolution No. 50, Rule II, Sec. 9.

21
Proposed Resolution No. 50, Rule IV, Sec. 20.

22
Proposed Resolution No. 50, Rule IV, Sec. 20.

23
Proposed Resolution No. 50, Rule IV, Sec. 20.

24
Proposed Resolution No. 50, Rule IV, Sec. 21.

25
Proposed Resolution No. 50, Rule IV, Sec. 22.

26
Proposed Resolution No. 50, Rule IV, Sec. 22.

27
Proposed Resolution No. 50, Rule IV, Sec. 23.

28
Proposed Resolution No. 50, Rule IV, Sec. 23.

29
Proposed Resolution No. 50, Rule IV, Sec. 24.

30
Proposed Resolution No. 50, Rule IV, Sec. 25.

31
Proposed Resolution No. 50, Rule IV, Sec. 26.

32
Proposed Resolution No. 50, Rule IV, Sec. 27.

33
Proposed Resolution No. 50, Rule IV, Sec. 27.

34
Proposed Resolution No. 50, Rule IV, Sec. 29.

35
Proposed Resolution No. 50, Rule IV, Sec. 29.

36
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,
1986).

37
I RECORD, CONSTITUTIONAL COMMISSION, RECORD NO. 27 (Thursday, July 10,
1986).

38
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,
1986).

39
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,
1986).

40
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,
1986).
41
I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,
1986), which reads:

RECONSIDERATION AND APPROVAL, ON THIRD READING, OF THE ARTICLE


ON THE JUDICIARY. On motion of Mr. Bengzon, there being no objection, the Body
reconsidered the approval, on Third Reading, of the Article on the Judiciary, to afford
the other Members opportunity to cast their votes. Thereupon, upon direction of the
Chair, the Secretary-General called the Roll for nominal voting and the following
Members cast an affirmative vote:

Abubakar

Alonto

Azcuna

Natividad

Tadeo

With 5 additional affirmative votes, making a total of 43 Members voting in favor and
none against, the Chair declared the Article on the Judiciary approved on Third
Reading.

42
I RECORD, CONSTITUTIONAL COMMISSION, NO. 35 (Monday, July 21, 1986), which
reads in part:

MR. DAVIDE:

xxx

A Unicameral Structure of the National Assembly. — In the records of the 1935 and
1971 Constitutional Conventions, and now the 1986 Constitutional Commission,
advocates of unicameralism and bicameralism have eloquently discoursed on the
matter. The draft proposal of the 1986 UP Law Constitution Project analyzes
exhaustively the best features and the disadvantages of each. Our people, having
experienced both systems, are faced with a difficult decision to make.

Madam President and my dear colleagues, even in our own Committee, I had to
break the tie in favor of unicameralism. Commissioner Sarmiento, in his Resolution
No. 396, aptly stated that the Philippines needs a unicameral legislative assembly
which is truly representative of the people, responsive to their needs and welfare,
economical to maintain and efficient and effective in the exercise of its powers,
functions and duties in the discharge of its responsibilities. Commissioner Tingson,
however, said that despite its simplicity of organization, resulting in economy and
efficiency, and achieving a closer relationship between the legislative and executive,
it also resulted in the authoritarian manipulation by the Chief Executive, depriving in
the process the people from expressing their true sentiments through their chosen
representatives. Thus, under Resolution No. 321, Commissioner Tingson calls for the
restoration of the bicameral form of legislature to maximize the participation of people
in decision-making.
43
I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986).

44
I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986), which reads in part:

xxx

With 22 Members voting for a unicameral system and 23 Members voting for
bicameralism, the Body approved the proposal for a bicameral legislature.

45
Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995, pp. 310-
311.

46
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 102 (Tuesday and
Wednesday, October 7 and 8, 1987).

47
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 103 (Thursday, October
9, 1986), which reads in part:

xxx

With 29 Members voting in favor, none against and 7 abstentions, the Body
approved, on Third Reading, the Article on the Legislative.

48
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 104 (Friday, October
10, 1986).

49
V, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 109 (Wednesday,
October 15, 1986), which reads in part:

xxx

MR. GUINGONA: Madam President, I have the honor on behalf of the Sponsorship
Committee to officially announce that on October 12, the 1986 Constitutional
Commission had completed under the able, firm and dedicated leadership of our
President, the Honorable Cecilia Muñoz Palma, the task of drafting a Constitution for
our people, a Constitution reflective of the spirit of the time — a spirit of nationalism,
a spirit of dedication to the democratic way of life, a spirit of liberation and rising
expectations, a spirit of confidence in the Filipino. On that day, Madam President, the
Members of this Constitutional Commission had approved on Third Reading the draft
Constitution of the Republic of the Philippines — a practical instrument suited to the
circumstances of our time but which is broad enough to allow future generations to
respond to challenges which we of this generation could not foretell, a Charter which
would seek to establish in this fair land a community characterized by social
progress, political stability, economic prosperity, peace, justice and freedom for all…

50
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986) AND I RECORD,
CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

51
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).
52
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

53
I RECORD, CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

54
I RECORD, CONSTITUTIONAL COMMISSION 510 (July 14, 1986).

55
II RECORD, CONSTITUTIONAL COMMISSION 434 (July 30, 1986).

56
Lawrence Tribe, as cited in It is a Constitution We Are Expounding, p. 21 (2009),
previously published in AMERICAN CONSTITUTIONAL LAW, Chapter 1: Approaches to
Constitutional Analysis (3rd ed.2000).

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