OUTLINE OF NOTES & CASES IN

POLITICAL LAW
May 2010 Edition

by:

ATTY. LARRY D. GACAYAN

Professor
(Constitutional Law Review, Constitutional Law I & II)
COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS

PRE-BAR REVIEWER

CPRS PRE-BAR REVIEW CENTER

(Cagayan de Oro City, Zamboanga City, Iloilo City and Davao City)

EXCELLENT PRE-BAR REVIEW CENTER

(General Santos City, Baguio City and Tacloban City)

POWERHAUS PRE-BAR REVIEW CENTER

(Santiago City and Tagbilaran City)

COSMOPOLITAN BAR REVIEW CENTER

(Baguio City)
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PART I
DEFINITIONS AND CONCEPTS

1. Define: a. Political Law—is that branch of public law which deals with the
organization and operations of the governmental organs of the State and defines
the relations of the State with the inhabitants of its territory. (PEOPLE VS.
PERFECTO, 43 Phil. 887)

b. Constitutional Law
c. Constitution
d. Administrative Law
e. Law of Public Officers
f. Law on Public Corporations
g. Election Law
h. Distinction between Political
Law and Constitutional Law

2. Read: MACARIOLA VS. JUDGE ASUNCION, 114 SCRA 77

The provision in the Code of Commerce (Made

effective in the Philippines in 1887) which prohibits
judges, justices, etc., (public officers) from engaging in
business within the territorial jurisdiction of their courts is
political in nature and therefore, said provision was
deemed abrogated when there was a change of sovereignty
from Spain to the United States at the turn of the century.
Political laws are deemed abrogated if there is a change of
sovereignty and unless re-enacted under the new sovereign,
the same is without force and effect.

3. The Supremacy of the Constitution

Read: 1. MUTUC VS. COMELEC, 36 SCRA 228

2. MANILA PRINCE HOTEL VS. GSIS, 267 SCRA 408

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. 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.
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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. 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.

4. Kinds of Constitution

a) written or unwritten
b) rigid and flexible
c) cumulative or conventional

5. AMENDMENT OR REVISION OF THE CONSTITUTION (Art. XVII)

Section 1. Any amendment to, or revision of, this

Constitution may be proposed by:

[1] The Congress upon a vote of ¾ 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 12% of the total
number of registered voters, of which every legislative
district must be represented by at least 3% of the
registered voter therein. No amendment under this
Section shall be authorized within five (5) years following
the ratification of this Constitution nor oftener than once
every five years thereafter.
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The Congress shall provide for the implementation

of the exercise of this right.

Section 3. The Congress, by a vote of 2/3 of all its

members, cal a constitutional convention, or by a
majority vote of all its Members, submit to the electorate
the question of calling such a convention.

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 later than ninety days
after the certification by the COMELEC of the
sufficiency of the petition.

(2007 Bar Question in Political Law:

Question: May Congress by ¾ votes of all its members (whether voting
jointly or separately) AMEND any provision of the Constitution?

Answer: No. It can only propose amendments by ¾ votes of all its members.
A provision is amended only after it was ratified by majority of the votes cast
during the plebiscite called to amend or reject the proposed amendments)

NOTE: Amendments to, or revision of the Constitution is VALID only when

approved by a majority of the votes cast during the plebiscite, not by the votes of
the Members of Congress.

2. Read: R.A. 6735

Requisites for a valid people’s initiative to

amend the Constitution; distinctions between
amendment and revision.

RAUL L. LAMBINO and ERICO B. AUMENTADO ,

together with 6,327,952 registered voters vs. THE
COMMISSION ON ELECTIONS, G.R. No. 174153,
October 25, 2006, 505 SCRA 160

Carpio, J.

Facts:

Petitioners filed a Petition for Initiative and Referendum with the COMELEC to
amend the 1987 Philippine Constitution, particularly Articles VI and VII to replace the
present Presidential-Bicameral system of government to Parliamentary-Unicameral
system using Section 2, Art. XVII of the Constitution. Petitioners claim that their
petition was signed by 6,327,952 million voters all over the country and the same
constitutes over 12% of all the registered voters in the entire country and that more
than 3% of the registered voters in every legislative district signed the same in
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accordance with Section 2, Art. XVII of the Constitution. The petition to change the
Constitution involves sections 1-7 of Article VI; Sections 1-4 of Article VII and an
Article XVII entitled “Transitory Provisions”. The petitioners prayed with the
COMELEC 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 PRESIDENTIAL BICAMERAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?

The COMELEC dismissed the petition citing MIRIAM DEFENSOR

SANTIAGO VS. COMELEC, 270 SCRA 106 where it was held that:

RA 6735 intended to include the System of Initiative

on Amendments to the Constitution, but is, unfortunately,
Inadequate to cover that system under Section 2, Art. XVII
of the Constitution. x x x .
The foregoing brings us to the conclusion that RA
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 the purposes
of this act.

Considering the said dismissal, petitioners elevated the matter to the

Supreme Court on Certiorari and Mandamus alleging rave abuse of discretion and
to set aside the COMELEC’ Decision and to compel the latter to give due course
to their initiative petition.

THE ISSUES:

1. WHETHER THE LAMBINO GROUP’S PETITION

COMPLIES WITH SECTION 2, ARTICLE XVII OF THE
CONSTITUTION ON AMENDMENTS TO THE
CONSTITUTION THROUGH PEOPLE’S INITIATIVE;
2. WHETHER THE COURT SHOULD REVISIT ITS RULING IN
DEFENSOR-SANTIAGO VS. COMELEC, DECLARING
THAT RA NO. 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.

H E L D:

There is no merit to the petition.

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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. As such, there is likewise no grave abuse of discretion on the part of
the COMELEC.

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 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 (12%) of the total number of registered voters of
which every legislative district must be represented by at
least three per centum (3%) of the registered voters
therein.”

The deliberations of the Constitutional Convention vividly explain the

meaning of the 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…As it is envisioned, any Filipino can prepare
that proposal and pass it around for signature.

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 the proposal and pass it around for signature.”

The essence of amendments “directly proposed by the people through

initiative upon a petition” IS THAT THE ENTIRE PROPOSAL ON ITS FACE
IS A PETITION BY THE PEOPLE. This means two (2) essential elements must
be present:
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1. The people must author and must sign the entire proposal. No agent or
representative can sign for and on their behalf;
2. 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 will express their assent by signing
such complete proposal in a petition. Thus, an amendment is “DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON “
ONLY IF THE PEOPLE SIGN ON A PETITION THAT OCNTAINS THE FULL
TEXT OF THE PROPOSED AMENDMENTS.

The petitioners 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 a copy of the
document containing the proposed amendments and as such, the people signed
initiative petition without knowing the actual amendments proposed in the said
initiative. Instead , the alleged 6.3 million people who signed the petition had to
rely the representations of Atty. Lambino. Clearly, Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.

2. A people’s initiative to change the Constitution applies only to an

amendment of the Constitution and not to its revision. In contrast, Congress and a
Constitutional Convention can propose both amendments and revisions to the
Constitution. This is clear under Section 1 of Art. XVII of the Constitution.

Where the intent and language of the Constitution under Section 2 of Art.
XVIII 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. The two are distinguished as follows:

“Revision” is the alterations of the different portions of the entire

document [Constitution]. It may result in the rewriting whether the
whole constitution, or the greater portion of it, or perhaps 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.

“Amendment” of the Constitution, on the other hand, envisages

a change or 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.
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(NOTE: On November 20, 2006, the Supreme Court in its Resolution of the
Motion for Reconsideration of Lambino, while it denied the Motion for
Reconsideration for lack of merit insofar as they want the people’s initiative
petition to be presented to the people in a plebiscite, it held that ten (10)
members voted to declare that RA No. 6735 IS COMPLETE AND ADEQUATE
and therefore, people’s initiative may be availed of by the people provided they
shall comply with the strict requirements of Section 2, Art. XVII that the
proposed amendments/s to the Constitution must be indicated in the petition
itself signed by the people.)

MIRIAM DEFENSOR-SANTIAGO, et al. Vs. COMELEC,

G.R. No. 127325, March 19, 1997 & June 10, 1997

RA 6735 intended to include the System of Initiative

on Amendments to the Constitution, but is, unfortunately,
Inadequate to cover that system. Section 2 Art. XVII is not
self-executory and unless Congress provides for its
implementation , it would remain in the cold niche of the
Constitution. RA 6735 in all its 23 sections mentions the
word “Constitution” only in section 2 and Section 3 as
compared to the initiative on “statutes” and local
legislation. The foregoing brings us to the conclusion that
RA 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 the purposes
of this act.

Enumerate the steps to be followed and the requisites to be met in order that
the people may proposed the amendments, repeal, amend or enact a law or
provision of the Constitution.

3. Distinguish “Revision” from “amendment” of the Constitution.

“Revision” is the alterations of the different portions of the

entire document [Constitution]. It may result in the rewriting whether
the whole constitution, or the greater portion of it, or perhaps 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.

“Amendment” of the Constitution, on the other hand, envisages

a change or 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. (SINCO, Vicente, PHILIPPINE POLITICAL LAW)
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4. Read: a) MABANAG vs. LOPEZ VITO, 78 Phil. 1

b) GONZALES vs. COMELEC, 21 SCRA 774

There is no prohibition for Congress to propose amendments to the

Constitution and at the same time call for the convening of a Constitutional
Convention to amend the Constitution. The word “or” in the provision “…
Congress, upon a vote of ¾ of all its members; OR [2] A constitutional
Convention” under Section 1, Art. XVII also means “AND”.

c) TOLENTINO vs. COMELEC, 41 SCRA 702

“Doctrine of Proper Submission” means all the proposed amendments to

the Constitution shall be presented to the people for the ratification or rejection at
the same time, not piecemeal.

d) SANIDAD vs. COMELEC, 73 SCRA 333

e) ALMARIO vs. ALBA, 127 SCRA 69

If the question regarding the proposed amendment to the Constitution deals

with its “necessity, expediency or wisdom”, the same is political in nature and
beyond the power of the courts to decide.

f) MIRIAM DEFENSOR SANTIAGO VS. COMELEC, 270 ACRA 106

PART II
PREAMBLE

1. Purpose and Effect of a Preamble.

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. AGLIPAY VS. RUIZ, 64 Phil. 201

It is almost trite to say now that in this country we enjoy

both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their
oath to support and defend the constitution, bind
themselves to recognize and respect the constitutional
guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated
that what is guaranteed by our Constitution is religious
liberty, not mere religious toleration.

Religious freedom, however, as a constitutional

mandate is not inhibition of profound reverence for
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religion and is not denial of its influence in human affairs.

Religion as a profession of faith to an active power that
binds and elevates man to his Creator is recognized. And,
in so far as it instills into the minds the purest principles of
morality, its influence is deeply felt and highly appreciated.
When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in
order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a
regime of justice, liberty and democracy," they thereby
manifested reliance upon Him who guides the destinies of
men and nations. The elevating influence of religion in
human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded
to religious sects and denominations.

PART III
ARTICLE I - THE NATIONAL TERRITORY

Section 1. The national territory comprises the Philippine

Archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between and
connecting the islands of the archipelago, regardless of
their breadth and dimensions, form part of the internal
waters of the Philippines.

1. What is the most significant change in this Article, compared with those of the
1935 and 1973 Constitutions?

2. What is the archipelago theory or archipelagic doctrine?

3. Methods used in fixing the baseline from which the territorial belt is measured:

a. The normal baseline method

b. The straight baseline method

4. Read: The Law of the Sea: Its major implications to the Philippines, by Justice
Jorge R. Coquia, p. 31, Philippine Law Gazette, Vol. 8, No.1.

5. R.A. 3046
R.A. 5446

6. Definitions:

a. Territorial sea
b. Internal or inland waters
c. high seas or international seas
d. sea-bed
e. sub-soil
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f. Insular shelves
g. other submarine areas

7. Reason and effect of having an Article on the National Territory.

8. Read:

1) Presidential Decree No. 1596 - June 11, 1978 (Making the Kalayaan
Island Group [Freedomland] as part of the Philippine Territory)

2) Presidential Decree No. 1599 - June 11, 1978 (Declaring the

Exclusive Economic Zone of the Philippines which is 200 nautical miles from its
baseline)

PART IV

ARTICLE II. DECLARATION OF PRINCIPLES

AND STATE POLICIES

Section 1. The Philippines is a democratic

and republican State. Sovereignty resides in
the people and all government authority
emanates from them.

a. The basic principles underlying the 1935, 1973 and 1987 Constitutions.

b.Manifestations of a republican state.

c. Define "state"

COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23

d. Elements of a state. Define each:

1. people
2. territory
3. sovereignty
4. government

e. Different meanings of the word “people” as used in the constitution:

1. as inhabitants (Art. XIII, Sec. 1; Art. III, Sec. 2);

2. as citizens (Preamble; Art. II, Sec. 1 & 4; Art. III, Sec. 7);

3. as voters (Art. VII, Sec. 4)

f. presidential & parliamentary forms of government

Read:

1. FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757

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The government of the Philippines under the 1973 Constitution is

“essentially presidential with parliamentary features.”

2. LEGASPI VS. SEC. OF FINANCE, 115 SCRA 418

The form of government is “essentially parliamentary with presidential

features.”

g. Two-fold function of the government.

Read:

1)BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and
Constituent [Mandatory] Functions)

2) ACCFA VS. CUGCO, 30 SCRA 649

Due to complexities of the changing society, the two-

fold function of the government as classified by President
Wilson is no longer relevant.

h. Parents Patriae

Read:
1) GOVT. VS. MONTE DE PIEDAD, 35 Phil 738
2) CABANAS VS. PILAPIL, 58 SCRA 94

i. De jure govt.? De facto govt.?

Read: 1. AQUINO VS. COMELEC, 62 SCRA 275 (on the de jure aspect)
2. In Re: SATURNINO BERMUDEZ, 145 SCRA 160

A government formed as a result of a people’s revolution,

is considered de jure if it is already accepted by the family
of nations or other countries like the United States, Great
Britain, Germany, Japan, and others.

3. Estrada vs. Macapagal & Desierto, infra.

j. The three (3) kinds of de facto government?

Read: CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113

There are several kinds of de facto governments.

a. The first, or government de facto in a proper legal sense, is

that government that gets possession and control of, or
usurps, by force or by the voice of the majority, the rightful
legal governments and maintains itself against the will of
the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell
as Protector.
b. The second is that which is established and maintained by
military forces who invade and occupy a territory of the
enemy in the course of war, and which is denominated a
 13

government of paramount force, as the cases of Castine, in

Maine, which was reduced to British possession in the war
of 1812, and Tampico, Mexico, occupied during the war
with Mexico, by the troops of the United States.
c. And the third is that established as an independent
government by the inhabitants of a country who rise in
insurrection against the parent state of such as the
government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only
with the second and third kinds of de facto governments.

"But there is another description of government,

called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government
of paramount force. Its distinguishing characteristics are

(1), that its existence is maintained by active military

power with the territories, and against the rightful authority
of an established and lawful government; and
(2), that while it exists it necessarily be obeyed in
civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government.

On the other hand, laws of a political nature or

affecting political relations, such as, among others, the
right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory
occupied, are considered as suspended or in abeyance
during the military occupation. Although the local and civil
administration of justice is suspended as a matter of course
as soon as a country is militarily occupied, it is not usual
for the invader to take the whole administration into his
own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges
and other judicial officers are kept in their posts if they
accept the authority of the belligerent occupant or are
required to continue in their positions under the
supervision of the military or civil authorities appointed,
by the Commander in Chief of the occupant. These
principles and practice have the sanction of all publicists
who have considered the subject, and have been asserted
by the Supreme Court and applied by the President of the
United States.

The doctrine upon this subject is thus summed up by

Halleck, in his work on International Law (Vol. 2, p. 444):
"The right of one belligerent to occupy and govern the
territory of the enemy while in its military possession, is
one of the incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for
authority to establish a government for the territory of the
enemy in his possession, during its military occupation,
 14

nor for the rules by which the powers of such government

are regulated and limited. Such authority and such rules are
derived directly from the laws war, as established by the
usage of the of the world, and confirmed by the writings of
publicists and decisions of courts in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or
the laws which regulate private rights, continue in force
during military occupation, excepts so far as they are
suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government,
and can at his pleasure either change the existing laws or
make new ones."

The governments by the Philippine Executive

Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments,
it necessarily follows that the judicial acts and proceedings
of the courts of justice of those governments, which are not
of a political complexion, were good and valid, and, by
virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and
valid after the liberation or reoccupation of the Philippines
by the American and Filipino forces under the leadership
of General Douglas MacArthur. According to that well-
known principle in international law, the fact that a
territory which has been occupied by an enemy comes
again into the power of its legitimate government of
sovereignty, "does not, except in a very few cases, wipe out
the effects of acts done by an invader, which for one reason
or another it is within his competence to do. Thus judicial
acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that
they take effect during the continuance of his control, and
the various acts done during the same time by private
persons under the sanction of municipal law, remain good.
Were it otherwise, the whole social life of a community
would be paralyzed by an invasion; and as between the
state and the individuals the evil would be scarcely less, it
would be hard for example that payment of taxes made
under duress should be ignored, and it would be contrary to
the general interest that the sentences passed upon
criminals should be annulled by the disappearance of the
intrusive government ." (Hall, International Law, 7th ed., p.
518.) And when the occupation and the abandonment have
been each an incident of the same war as in the present
case, postliminy applies, even though the occupant has
acted as conqueror and for the time substituted his own
sovereignty as the Japanese intended to do apparently in
granting independence to the Philippines and establishing
the so-called Republic of the Philippines. (Taylor,
International Law, p. 615.)

l. Sovereignty:

1. legal
 15

2. political

m. The doctrine of sovereignty as auto-limitation?

Read:

1. REAGAN VS. COMMISIONER OF INTERNAL REVENUE, 30

SCRA 968

"By the Agreement, it should be noted, the Philippine

Government merely consents that the United States
exercise jurisdiction in certain cases. The consent was
given purely as a matter of comity, courtesy, or expediency.
The Philippine Government has not abdicated its
sovereignty over the bases as part of the Philippine
territory or divested itself completely of jurisdiction over
offenses committed therein. Under the terms of the treaty,
the United States Government has prior or preferential but
not exclusive jurisdiction of such offenses. The Philippine
Government retains not only jurisdictional rights not
granted, but also all such ceded rights as the United States
Military authorities for reasons of their own decline to
make use of. The first proposition is implied from the fact
of Philippine sovereignty over the bases; the second from
the express provisions of the treaty." "Nothing is better
settled than that the Philippines being independent and
sovereign, its authority may be exercised over its entire
domain. There is no portion thereof that is beyond its
power. Within its limits, its decrees are supreme, its
commands paramount. Its laws govern therein, and
everyone to whom it applies must submit to its terms. That
is the extent of its jurisdiction, both territorial and personal.
Necessarily, likewise, it has to be exclusive. If it were not
thus, there is a diminution of sovereignty." Then came this
paragraph dealing with the principle of auto-limitation: "It
is to be admitted any state may, by its consent, express or
implied, submit to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is a
power plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the succinct
language of Jellinek, "is the property of a state-force due to
which it has the exclusive capacity of legal self-
determination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what
otherwise is illimitable competence." The opinion was at
pains to point out though that even then, there is at the
most diminution of jurisdictional rights, not its
disappearance.

2. PEOPLE VS. GOZO, 53 SCRA 476

3. COMMISSIONER VS. ROBERTSON, 143 SCRA 397

Salaries of American employees in the US Bases in the Philippines are not

subject to tax by the Philippine Government because that is what is provided for
the RP US Military Basis Agreement.
 16

2. Section 2. The Philippines renounces war as an

instrument of national police, 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 among all
nations.

a. difference between aggressive & defensive war

b. Read:

1. MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70

The Philippines adopts the Universal Declaration of

Human Rights since it is a generally accepted principle of
international law. As such, it should be applied to illegal
aliens like the petitioner so that it would be a violation of
the said international law to detain him for an unreasonable
length of time since no vessel from his country is willing to
take him.
"The meaning of "reasonable time" depends upon the
circumstances, specially the difficulties of obtaining a
passport, the availability of transportation, the diplomatic
arrangements concerned and the efforts displayed to send
the deportee away. Considering that this Government
desires to expel the alien, and does not relish keeping him
at the people's expense, we must presume it is making
efforts to carry out the decree of exclusion by the highest
officer of the land. On top of this presumption assurances
were made during the oral argument that the Government
is really trying to expedite the expulsion of this petitioner.
On the other hand, the record fails to show how long he
has been under confinement since the last time he was
apprehended. Neither does he indicate neglected
opportunities to send him abroad. And unless it is shown
that the deportee is being indefinitely imprisoned under the
pretense of awaiting a chance for deportation 3 or unless
the Government admits that it can not deport him or unless
the detainee is being held for too long a period our courts
will not interfere.

2. KURODA VS. JALANDONI, 83 Phil 171

Petitioner argues that respondent Military Commission

has no Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention on Rules and
Regulations covering Land Warfare and the Geneva
Convention because the Philippines is not a signatory to
the first and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague and
Geneva conventions form, part of and are wholly based on
the generally accepted principals of international law. In
facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were
signatories to the two Convention, Such rule and principles
 17

therefore form part of the law of our nation even if the

Philippines was not a signatory to the conventions
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
continued inn treaties to which our government may have
been or shall be a signatory.

Furthermore when the crimes charged against petitioner

were allegedly committed the Philippines was under the
sovereignty of United States and thus we were equally
bound together with the United States and with Japan to
the right and obligation contained in the treaties between
the belligerent countries. These rights and obligation were
not erased by our assumption of full sovereignty. If at all
our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed
crimes against crimes against our people. In this
connection it is well to remember what we have said in the
case of Laurel vs. Misa (76 Phil., 372):

3. SALONGA VS. HERMOSO, 97 SCRA 121

4. AGUSTIN VS. EDU, 88 SCRA 195

The Geneva Convention on Road Signs and

Signals, is also considered part of the law of the
Philippines since the same is a generally accepted principle
of international law in accordance with the Incorporation
clause of the Constitution.

5. REYES VS. BAGATSING,125 SCRA 553

Respondent Mayor posed the issue of the applicability

of Ordinance No. 7295 of the City of Manila prohibiting
the holding or staging of rallies or demonstrations within a
radius of five hundred (500) feet from any foreign mission
or chancery and for other purposes. It is to be admitted that
it finds support In the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was
no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet. Even
if it could be shown that such a condition is satisfied. it
does not follow that respondent Mayor could legally act
the way he did. The validity of his denial of the permit
sought could still be challenged. It could be argued that a
case of unconstitutional application of such ordinance to
the exercise of the right of peaceable assembly presents
itself. As in this case there was no proof that the distance is
less than 500 feet, the need to pass on that issue was
obviated, Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly
cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly
demands nothing less.
 18

Without saying that the Ordinance is obnoxious per

se to the constitution, it cannot be validly invoked
whenever its application would collide with a
constitutionally guaranteed right such as freedom of
assembly and/or expression, as in the case at bar,
regardless of whether the chancery of any foreign embassy
is beyond or within 500 feet from the situs of the rally or
demonstration.

Section 3. 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.

See also:

Art. VII, Sec. 18

Art. XVI, Sec. 5 (2)
Art. XVI, Sec. 5 (4)

Section 4. The prime duty of the government is to serve

and protect the people. The Government may call upon
the people to defend the State and in the fulfillment
thereof, all citizens may be required, under conditions
provided by law, to render personal and military service.

Read:

1. PEOPLE VS. LAGMAN, 66 Phil. 13

“The appellant’s argument that he does not want to join the armed forces
because “he does not want to kill or be killed” and that “he has no military
inclination” is not acceptable because it is his obligation to join the armed
forces in connection with the “defense of the State” provision of the
Constitution.

2. PEOPLE VS. MANAYAO, 78 Phil. 721

3. PD1706, August 8, 1980
4. Exec. Order No. 264

Section 5. The maintenance of peace and order, the

protection of life, liberty, and property, and the promotion
of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.

Section 6. The separation of church and State shall be

inviolable.

Read:
1) PAMIL VS. TELERON, 86 SCRA 413

2) GERMAN VS. BARANGAN, 135 SCRA 514

(NOTE: Read the dissenting opinions in both cases)
 19

3) Other provisions:
Other provisions on church & state:

1. ART. III, Sec. 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.

2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-

profit cemeteries…actually, directly and exclusively used for religious,
charitable, or educational purposes shall be exempt from taxation.

3. ART. VI, Sec. 29 .(2). No public money or property shall be

appropriated, applied, paid, for the benefit, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination or religion,
except when such priest, minister.. is assigned to the armed forces, or to
any penal institution, or government orphanage or leprosarium.

4. ART. IX, C, 2(5). Religious denominations and sects shall not be

registered…as political parties. (NOTE: Religious organizations are also
prohibited ion connection with sectoral representatives under Art. VI)

5. ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall
be allowed to be taught to their children in elementary and high schools
within the regular class hours by instructors designated or approved by
religious authorities to which said children belong, without additional
cost to the government.

Sections 7. The State shall pursue an independent

foreign policy. In its relations with other states the
paramount consideration shall be national sovereignty,
territorial integrity, national interest, and the right to
self-determination,

Section 8. The Philippines, consistent with the national

interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory.

1. meaning of "nuclear-free" Philippines;

2. . Art. XVIII, Secs. 4 & 25

Sections 9. The State shall promote a just and dynamic

social order that will ensure the prosperity and
independence of the nation and free the people from
poverty through policies that provide adequate social
services, promote full employment, a rising standard of
living, and an improved quality of life for all..

Section 10. The state shall promote social justice in all

phases of national development.
 20

Section 11. The state values the dignity of every human

person and guarantees full respect for human rights.

a. Read together with entire provisions of Article XIII

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 civil efficiency and
the development of moral character shall receive the
support the support of the government.

NOTE: Father Bernas opines that this provision does not take a stand on
divorce. As such, a Divorce Law to be passed by Congress may or may not be
unconstitutional. But definitely, a law allowing abortion , other than therapeutic,
is unconstitutional.

1. Read together with the entire provisions of Article XV.

2. Read:
a) GINSBERG VS. NEW YORK, 390 US 629 (1969)

A law prohibiting the sale of “girlie magazines” [bold?) is constitutional and

does not violate the above provision. This is so because parents could buy
said magazines for their children if they believe the same is already suitable
to the understanding of their child. This is in accordance with this provision
which states that the parents have the “natural and primary right in rearing
their child for civic efficiency…”
b) MEYER VS. NEBRASKA, 260 US 260 (1922)
c) PIERCE VS. SOCIETY OF SISTERS, 268 US 510 (1925)

A law requiring small kids to be enrolled in public schools only is

unconstitutional since it interferes with the right of parents in rearing their
children. They have the right to choose which school is best suited for the
development of their children without interference from the State.

d) PACU VS. SECRETARY OF EDUCATION, 97 Phil. 806

e) CABANAS VS. PILAPIL, 58 SCRA 94

Section 13. The 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.

Read:
1) PD 684
2) PD 935
3) PD 1102
4) PD 603; see the objectives of the law
 21

Sections 14. The State recognizes the role of women in

nation building, and shall ensure the fundamental
equality before the law of men and women.

Section 15. The State shall protect and promote the right
to health of the people and instill health consciousness
among them.

Section 16. The State shall protect and advance the right
of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.

Section 17. The State shall give priority to education,

science and technology, arts, culture, and sports to foster
patriotism and nationalism, accelerate social progress,
and promote human liberation and development.

1) Read together with Article XIV

Read :
VILLEGAS VS. SUBIDO, 109 SCRA 1
OPOSA VS. FACTORAN, July 30, 1993;

In a broader sense, this petition bears upon the right

of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."

The minors-petitioners have the personality to sue

since the case deals with the timber licensing agreements
entered into by the government which if not stopped would
be prejudicial to their future. This is so because the DENR
holds in trust for the benefit of plaintiff minors and
succeeding generations the natural resources of the
country. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of
the Philippines. Consequently, since the parties are so
numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous
and representative enough to ensure the full protection of
all concerned interests. Hence, all the requisites for the
filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an
incident to the former.
Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and
 22

harmony of nature." Nature means the created world in its

entirety. 9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for
the generations to come.

The complaint focuses on one specific fundamental

legal right the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly
provides:

Sec. 16. The State shall protect and advance the

right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is
provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the
right to health of the people and instill health
consciousness among them.

While the right to a balanced and healthful ecology is

to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind.
If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers
that unless the rights to a balanced and healthful ecology
and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would
be lost not only for the present generation, but also for
 23

those to come generations which stand to inherit nothing

but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with

it the correlative duty to refrain from impairing the
environment.

As a matter of logic, by finding petitioners' cause of

action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the
Constitution are self-executing and judicially enforceable
even in their present form. The implications of this
doctrine will have to be explored in future cases; those
implications are too large and far-reaching in nature even
to be hinted at here.

Section 18. The State affirms labor as a primary social

economic force. It shall protect the rights of workers and
promote their welfare.

1) Read together with Section 3, Article XIII, 1987 Constitution.

2) Compare it with Section 9, Article II, 1973 Constitution.
3) Read:

a. VICTORIANO VS. ELIZALDE POPE WORKERS UNION, 59 SCRA 54

The right to religion prevails over contractual or legal rights. As such,

an Iglesia Ni Kristo member may refuse to join a Union and despite the fact
that there is a closed shop agreement in the establishment where he was
employed, his employment could not be validly terminated for his non-
membership in the majority union therein.

Section 19. The State shall develop a self-reliant and

independent national economy effectively controlled by
Filipinos.

See Art. XII

Section 20. The State recognizes the indispensable role of

the private sector, encourages private enterprise, and
provides incentives to needed investments.

a. Do we practice the free enterprise system in the Philippines or is it the

welfare state concept? Distinguish the two.

b. Read: ACCFA VS. CUGCO, 30 SCRA 649 (Note: Read the separate
opinion of former Chief Justice ENRIQUE FERNANDO only)

The Philippines never practiced the free enterprise system. It is the

welfare-state concept which is being followed as shown by the constitutional
provision on agrarian reform, housing, protection to labor… (NOTE,
however, that the 1987 Constitution have provisions which provide for “free
enterprise)
 24

PHILIPPINE COCONUT DESICCATORS VS.

PHILIPPINE COCONUT AUTHORITY, 286 SCRA
109

Mendoza, J.

The Philippine Constitutions, starting from the 1935

document, HAVE REPUDIATED laissez faire (or the
doctrine of free enterprise) as an economic principle, and
although the present Constitution enshrines free enterprise
as a policy, it nevertheless reserves to the government the
power to intervene whenever necessary to promote the
general welfare.

As such, free enterprise does not call for the removal

of “protective regulations” for the benefit of the general
public. This is so because under Art. XII, Sections 6 and 9,
it is very clear that the government reserves the power to
intervene whenever necessary to promote the general
welfare and when the public interest so requires.

Section 21. The State shall promote comprehensive rural

development and agrarian reform.

a. Read together with Secs. 4-10, Article XIII of the 1987 Constitution

b. Read PD 27 - as to the extent of land reform under the MARCOS regime

c. Read RA 3844 & 6389, as amended - THE CODE OF AGRARIAN

REFORMS OF THE PHILIPPINES (Read the policy of the state on this matter)

d .Read the COMPREHENSIVE AGRARIAN REFORM PROGRAM LAW,

RA No. 6657 as signed into law by the President on June 7, 1988.

e. Read:

Association of Small Landowners vs. Hon. Secretary of Agrarian Reform,

July 14, 1989

Sections 22. The State recognizes and promotes the right

of indigenous cultural communities within the
framework of national unity and development.
To be discussed later with Art. X, Secs. 15- 21.

Other provisions on indigenous cultural communities:

1. Art. VI, Sec. 5(2)

2. Art. X, Secs. 15 - 21
3. Art. XII, Sec. 5
4. Art. XIII, Sec. 6
5. Art. XIV, Sec. 17
6. Art. XVI, Sec. 12
 25

Section 23. The State shall encourage non-governmental,

community based, or sectoral organizations that promote
the welfare of the nation.

Section 24. The State recognizes the vital role of

communication and information in nation-building.

Section 25. The State shall ensure the autonomy of local

governments.

a. Define "autonomy"

b. See Art. X

Read the 1991 New Local Government Code and enumerate its provisions
evidencing "autonomy" to local government units.

Section 26. The State guarantee equal access to

opportunities for public service, and prohibit political
dynasties as may be defined by law.

Section 27. The State shall maintain honesty and

integrity in the public service and take positive and
effective measures against graft and corruption.

To be discussed under Article XI.

a. Please see RA 3019, The Anti-Graft and Corrupt Practices Act, as

amended by RA 3047, PD 77 and BP 195..
b. PD 749, July 18, 1975, which grants immunity from prosecution to givers
of bribes and other gifts and to their accomplices in bribery other than graft cases
against public officers.
c. RA 1379. Forfeiture in favor of the State any property found to have been
illegally acquired by a public officer or employee.

Section 28. Subject to reasonable conditions prescribed

by law, the State adopts and implements a policy of public
disclosure of all its transactions involving public interest.

Power of Congress to conduct inquiries in aid

of legislation; Public disclosure of government
transactions

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,

October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced

Philippine Senate Resolution No. 455 (Senate Res. No. 455), 1[4] “directing an
1[4]
Annex “E” of the Petition in G.R. No. 174318.
 26

inquiry in aid of legislation on the anomalous losses incurred by the Philippines

Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation
(PHC) due to the alleged improprieties in their operations by their respective
Board of Directors.” The pertinent portions of the Resolution read:

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

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

WHEREAS, some board members established wholly owned

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

WHEREAS, the Philippine Star, in its 12 February 2002 issue

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

WHEREFORE, be it resolved that the proper Senate

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

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

Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of
the herein petitioners, inviting him to be one of the resource persons in the public
meeting jointly conducted by the Committee on Government Corporations and
Public Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455. 2[6] On May 9, 2006, Chairman
Sabio declined the invitation because of prior commitment. 3[7] At the same time,
he invoked Section 4(b) of E.O. No. 1 earlier quoted. On August 10, 2006,
Senator Gordon issued a Subpoena Ad Testificandum,4[8] approved by Senate
President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners
Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in
the public hearing scheduled on August 23, 2006 and testify on what they know
relative to the matters specified in Senate Res. No. 455. All were disregarded by
the petitioners.

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

arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,
Mandaluyong City and brought him to the Senate premises where he was
detained.
2[6]
Annex “F” of the Petition in G.R. No. 174318.
3[7]
Annex “G” of the Petition in G.R. No. 174318.
4[8]
Annex “A” of the Petition in G.R. No. 174318.
 27

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

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

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

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

I S S U E:

Is Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution? Is its

implementation wherein the petitioners are exempt from appearing in
investigations involving their transactions violates Section 28, Art. II of the
Constitution?

HELD:

Section 4(b) of E.O. No.1, which limits the power of legislative inquiry by
exempting all PCGG members or staff from testifying in any judicial, legislative
or administrative proceeding provides:

No member or staff of the Commission shall be

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

Said provision of EO No. 1 violates Section 28, Art. II of the

Constitution which mandates that “Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.”

Read together with Section 7, Article III, Sec. 20, Art. VI and Section 1,
Art. XI of the 1987 Constitution.
 28

PART V
ARTICLE VI - THE LEGISLATIVE DEPARTMENT

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.

a. Define legislative power

- Basic concepts of the grant of legislative power:

1. it cannot pass irrepealable laws

2. principle of separation of powers
3. non-delegability of legislative powers

- reason for principle that the legislature cannot pass irrepeablable laws

- Separation of Powers

Read:
a. ANGARA VS. ELECTORAL COMMISSION, 63 Phil. 139
b. PLANAS VS. GIL, 67 Phil. 62
c. LUZON STEVEDORING VS. SSS, 34 SCRA 178
d. GARCIA VS. MACARAIG, 39 SCRA 106
e. Bondoc vs. HRET, Sept. 26, 1991
f. DEFENSOR SANTIAGO VS. COMELEC, 270 SCRA 106

b. Nature of legislative power

c. What are the limitations to the grant of legislative powers to the legislature?

d. Explain the doctrine of non-delegation power.

e. Permissive delegation of legislative power.

1) Sec. 23 (2) of Article VI (Emergency powers to the President

in case of war or other national emergency, for a limited period and
subject to such restrictions as Congress may provide, to exercise
powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by Resolution of Congress, such powers
shall cease upon the next adjournment thereof.

2) Sec. 28 (2) of Article VI. The Congress may by law,

authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of
the government.

- Other exceptions: traditional

3) Delegation to local governments
 29

The reason behind this delegation is because the local government is

deemed to know better the needs of the people therein.

a. See Section 5 of Article X

b. Read:
aa. RUBI VS. PROVINCIAL BOARD, 39 Phil. 660
bb. PEOPLE VS. VERA, 65 Phil 56

A law delegating to the local government units the power to fund the
salary of probation officers in their area is unconstitutional for violation of
the equal protection of the laws. In areas where there is a probation officer
because the local government unit appropriated an amount for his salaries,
convicts may avail of probation while in places where no funds were set
aside for probation officers, convicts therein could not apply for probation.

d. Reason for the delegation

4) Delegation of Rule-making power to administrative bodies

5) Delegation to the People (Section 2, Art. XVII of the Constitution and

Section 32, Article VI---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 of local legislative body after the registration
of a petition thereof signed by at least 10% of the total number of registered
voters, of which every legislative district must be represented by at least 3% of the
registered voters thereof.

f. Delegation of rule-making power to administrative bodies.

1) What is the completeness test? The sufficiency of standard test?

Read: 1. PELAEZ VS. AUDITOR GENERAL, 15 SCRA 569

During the period from September 4 to October 29,

1964 the President of the Philippines, purporting to act
pursuant to Section 68 of the Revised Administrative Code,
issued Executive Orders Nos. 93 to 121, 124 and 126 to
129; creating thirty-three (33) municipalities

The third paragraph of Section 3 of Republic Act No.

2370, reads:

Barrios shall not be created or their boundaries altered nor

their names changed except under the provisions of this
Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same

Section 3:

All barrios existing at the time of the passage of this

Act shall come under the provisions hereof.
 30

Upon petition of a majority of the voters in the areas

affected, a new barrio may be created or the name of an
existing one may be changed by the provincial board of the
province, upon recommendation of the council of the
municipality or municipalities in which the proposed barrio
is stipulated. The recommendation of the municipal council
shall be embodied in a resolution approved by at least two-
thirds of the entire membership of the said council:
Provided, however, That no new barrio may be created if
its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act

No. 2370 became effective, barrios may "not be created or
their boundaries altered nor their names changed" except
by Act of Congress or of the corresponding provincial
board "upon petition of a majority of the voters in the areas
affected" and the "recommendation of the council of the
municipality or municipalities in which the proposed barrio
is situated." Petitioner argues, accordingly: "If the
President, under this new law, cannot even create a barrio,
can he create a municipality which is composed of several
barrios, since barrios are units of municipalities?"

Moreover, section 68 of the Revised Administrative

Code, upon which the disputed executive orders are based,
provides:

The (Governor-General) President of the Philippines

may by executive order define the boundary, or boundaries,
of any province, subprovince, municipality, [township]
municipal district, or other political subdivision, and
increase or diminish the territory comprised therein, may
divide any province into one or more subprovinces,
separate any political division other than a province, into
such portions as may be required, merge any of such
subdivisions or portions with another, name any new
subdivision so created, and may change the seat of
government within any subdivision to such place therein as
the public welfare may require: Provided, That the
authorization of the (Philippine Legislature) Congress of
the Philippines shall first be obtained whenever the
boundary of any province or subprovince is to be defined
or any province is to be divided into one or more
subprovinces. When action by the (Governor-General)
President of the Philippines in accordance herewith makes
necessary a change of the territory under the jurisdiction of
any administrative officer or any judicial officer, the
(Governor-General) President of the Philippines, with the
recommendation and advice of the head of the Department
having executive control of such officer, shall redistrict the
territory of the several officers affected and assign such
officers to the new districts so formed.

Respondent alleges that the power of the President to

create municipalities under this section does not amount to
 31

an undue delegation of legislative power, relying upon

Municipality of Cardona vs. Municipality of Binañgonan
(36 Phil. 547), which, he claims, has settled it. Such claim
is untenable, for said case involved, not the creation of a
new municipality, but a mere transfer of territory from an
already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the time
of and prior to said transfer (See Gov't of the P.I. ex rel.
Municipality of Cardona vs. Municipality, of Binañgonan
[34 Phil. 518, 519-5201) in consequence of the fixing and
definition, pursuant to Act No. 1748, of the common
boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix

such common boundary, in order to avoid or settle conflicts
of jurisdiction between adjoining municipalities, may
partake of an administrative nature involving, as it does,
the adoption of means and ways to carry into effect the law
creating said municipalities the authority to create
municipal corporations is essentially legislative in nature.

Although 1a Congress may delegate to another

branch of the Government the power to fill in the 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) fix a 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, the

delegate would in effect, make or formulate such 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
 32

effects above referred to. In this connection, we do not

overlook the fact that, under the last clause of the first
sentence of Section 68, the President:

... may change the seat of the government within any

subdivision to such place therein as the public welfare may
require.

At any rate, the conclusion would be the same,

insofar as the case at bar is concerned, even if we assumed
that the phrase "as the public welfare may require," in said
Section 68, qualifies all other clauses thereof. It is true that
in Calalang vs. Williams (70 Phil. 726) and People vs.
Rosenthal (68 Phil. 328), this Court had upheld "public
welfare" and "public interest," respectively, as sufficient
standards for a valid delegation of the authority to execute
the law. But, the doctrine laid down in these cases as all
judicial pronouncements must be construed in relation to
the specific facts and issues involved therein, outside of
which they do not constitute precedents and have no
binding effect. The law construed in the Calalang case
conferred upon the Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, the power to issue rules and regulations
to promote safe transit upon national roads and streets.
Upon the other hand, the Rosenthal case referred to the
authority of the Insular Treasurer, under Act No. 2581, to
issue and cancel certificates or permits for the sale of
speculative securities. Both cases involved grants to
administrative officers of powers related to the exercise of
their administrative functions, calling for the determination
of questions of fact.

2 . TUPAS VS. OPLE, 137 SCRA 108 (Most representative)

3. US VS. ANG TANG HO, 43 Phil. 1

At its special session of 1919, the Philippine

Legislature passed Act No. 2868, entitled "An Act
penalizing the monopoly and holding of, and speculation
in, palay, rice, and corn under extraordinary circumstances,
regulating the distribution and sale thereof, and authorizing
the Governor-General, with the consent of the Council of
State, to issue the necessary rules and regulations therefor,
and making an appropriation for this purpose," the material
provisions of which are as follows:

Section 1. The Governor-General is hereby authorized,

whenever, for any cause, conditions arise resulting in an
extraordinary rise in the price of palay, rice or corn, to
issue and promulgate, with the consent of the Council of
State, temporary rules and emergency measures for
carrying out the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and
speculation in, palay, rice or corn.
 33

August 1, 1919, the Governor-General issued a

proclamation fixing the price at which rice should be sold.
August 8, 1919, a complaint was filed against the
defendant, Ang Tang Ho, charging him with the sale of rice
at an excessive price as follows:

The undersigned accuses Ang Tang Ho of a violation of

Executive Order No. 53 of the Governor-General of the
Philippines, dated the 1st of August, 1919, in relation with
the provisions of sections 1, 2 and 4 of Act No. 2868,
committed as follows:
That on or about the 6th day of August, 1919, in the city of
Manila, Philippine Islands, the said Ang Tang Ho,
voluntarily, illegally and criminally sold to Pedro Trinidad,
one ganta of rice at the price of eighty centavos (P.80),
which is a price greater than that fixed by Executive Order
No. 53 of the Governor-General of the Philippines, dated
the 1st of August, 1919, under the authority of section 1 of
Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced

to five months' imprisonment and to pay a fine of P500,
from which he appealed to this court, claiming that the
lower court erred in finding Executive Order No. 53 of
1919, to be of any force and effect, in finding the accused
guilty of the offense charged, and in imposing the sentence.
The official records show that the Act was to take effect on
its approval; that it was approved July 30, 1919; that the
Governor-General issued his proclamation on the 1st of
August, 1919; and that the law was first published on the
13th of August, 1919; and that the proclamation itself was
first published on the 20th of August, 1919.

The question here involves an analysis and construction of

Act No. 2868, in so far as it authorizes the Governor-
General to fix the price at which rice should be sold. It will
be noted that section 1 authorizes the Governor-General,
with the consent of the Council of State, for any cause
resulting in an extraordinary rise in the price of palay, rice
or corn, to issue and promulgate temporary rules and
emergency measures for carrying out the purposes of the
Act. By its very terms, the promulgation of temporary rules
and emergency measures is left to the discretion of the
Governor-General. The Legislature does not undertake to
specify or define under what conditions or for what reasons
the Governor-General shall issue the proclamation, but
says that it may be issued "for any cause," and leaves the
question as to what is "any cause" to the discretion of the
Governor-General. The Act also says: "For any cause,
conditions arise resulting in an extraordinary rise in the
price of palay, rice or corn." The Legislature does not
specify or define what is "an extraordinary rise." That is
also left to the discretion of the Governor-General. The Act
also says that the Governor-General, "with the consent of
the Council of State," is authorized to issue and promulgate
 34

"temporary rules and emergency measures for carrying out

the purposes of this Act." It does not specify or define what
is a temporary rule or an emergency measure, or how long
such temporary rules or emergency measures shall remain
in force and effect, or when they shall take effect. That is to
say, the Legislature itself has not in any manner specified
or defined any basis for the order, but has left it to the sole
judgment and discretion of the Governor-General to say
what is or what is not "a cause," and what is or what is not
"an extraordinary rise in the price of rice," and as to what
is a temporary rule or an emergency measure for the
carrying out the purposes of the Act. Under this state of
facts, if the law is valid and the Governor-General issues a
proclamation fixing the minimum price at which rice
should be sold, any dealer who, with or without notice,
sells rice at a higher price, is a criminal. There may not
have been any cause, and the price may not have been
extraordinary, and there may not have been an emergency,
but, if the Governor-General found the existence of such
facts and issued a proclamation, and rice is sold at any
higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the

Constitution of the United States all powers are vested in
the Legislative, Executive and Judiciary. It is the duty of
the Legislature to make the law; of the Executive to
execute the law; and of the Judiciary to construe the law.
The Legislature has no authority to execute or construe the
law, the Executive has no authority to make or construe the
law, and the Judiciary has no power to make or execute the
law. Subject to the Constitution only, the power of each
branch is supreme within its own jurisdiction, and it is for
the Judiciary only to say when any Act of the Legislature is
or is not constitutional. Assuming, without deciding, that
the Legislature itself has the power to fix the price at which
rice is to be sold, can it delegate that power to another, and,
if so, was that power legally delegated by Act No. 2868? In
other words, does the Act delegate legislative power to the
Governor-General? By the Organic Law, all Legislative
power is vested in the Legislature, and the power conferred
upon the Legislature to make laws cannot be delegated to
the Governor-General, or any one else. The Legislature
cannot delegate the legislative power to enact any law. If
Act no 2868 is a law unto itself and within itself, and it
does nothing more than to authorize the Governor-General
to make rules and regulations to carry the law into effect,
then the Legislature itself created the law. There is no
delegation of power and it is valid. On the other hand, if
the Act within itself does not define crime, and is not a law,
and some legislative act remains to be done to make it a
law or a crime, the doing of which is vested in the
Governor-General, then the Act is a delegation of
legislative power, is unconstitutional and void.
 35

The act, in our judgment, wholly fails to provide

definitely and clearly what the standard policy should
contain, so that it could be put in use as a uniform policy
required to take the place of all others, without the
determination of the insurance commissioner in respect to
maters involving the exercise of a legislative discretion
that could not be delegated, and without which the act
could not possibly be put in use as an act in conformity to
which all fire insurance policies were required to be issued.

The result of all the cases on this subject is that a law

must be complete, in all its terms and provisions, when it
leaves the legislative branch of the government, and
nothing must be left to the judgment of the electors or
other appointee or delegate of the legislature, so that, in
form and substance, it is a law in all its details in presenti,
but which may be left to take effect in futuro, if necessary,
upon the ascertainment of any prescribed fact or event.

4. TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208

5. FREE TELEPHONE WORKERS UNION, 108 SCRA 757
(Affecting National interest)
6. PHILCOMSAT VS. ALCUAZ, December 18, 1989

Fundamental is the rule that delegation of legislative

power may be sustained only upon the ground that some
standard for its exercise is provided and that the legislature
in making the delegation has prescribed the manner of the
exercise of the delegated power. Therefore, when the
administrative agency concerned, respondent NTC in this
case, establishes a rate, its act must both be non-
confiscatory and must have been established in the manner
prescribed by the legislature; otherwise, in the absence of a
fixed standard, the delegation of power becomes
unconstitutional. In case of a delegation of rate-fixing
power, the only standard which the legislature is required
to prescribe for the guidance of the administrative authority
is that the rate be reasonable and just. However, it has been
held that even in the absence of an express requirement as
to reasonableness, this standard may be implied.

It becomes important then to ascertain the nature of

the power delegated to respondent NTC and the manner
required by the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196,

respondent NTC is empowered, among others, to
determine and prescribe rates pertinent to the operation of
public service communications which necessarily include
the power to promulgate rules and regulations in
connection therewith. And, under Section 15(g) of
Executive Order No. 546, respondent NTC should be
guided by the requirements of public safety, public interest
and reasonable feasibility of maintaining effective
competition of private entities in communications and
 36

broadcasting facilities. Likewise, in Section 6(d) thereof,

which provides for the creation of the Ministry of
Transportation and Communications with control and
supervision over respondent NTC, it is specifically
provided that the national economic viability of the entire
network or components of the communications systems
contemplated therein should be maintained at reasonable
rates.

II. On another tack, petitioner submits that the

questioned order violates procedural due process because it
was issued motu proprio, without notice to petitioner and
without the benefit of a hearing. Petitioner laments that
said order was based merely on an "initial evaluation,"
which is a unilateral evaluation, but had petitioner been
given an opportunity to present its side before the order in
question was issued, the confiscatory nature of the rate
reduction and the consequent deterioration of the public
service could have been shown and demonstrated to
respondents. Petitioner argues that the function involved in
the rate fixing-power of NTC is adjudicatory and hence
quasi-judicial, not quasi- legislative; thus, notice and
hearing are necessary and the absence thereof results in a
violation of due process.

Respondents admit that the application of a policy

like the fixing of rates as exercised by administrative
bodies is quasi-judicial rather than quasi-legislative: that
where the function of the administrative agency is
legislative, notice and hearing are not required, but where
an order applies to a named person, as in the instant case,
the function involved is adjudicatory. Nonetheless, they
insist that under the facts obtaining the order in question
need not be preceded by a hearing, not because it was
issued pursuant to respondent NTC's legislative function
but because the assailed order is merely interlocutory, it
being an incident in the ongoing proceedings on
petitioner's application for a certificate of public
convenience; and that petitioner is not the only primary
source of data or information since respondent is currently
engaged in a continuing review of the rates charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service

Commission, we made a categorical classification as to
when the rate-filing power of administrative bodies is
quasi-judicial and when it is legislative, thus:

Moreover, although the rule-making power and even

the power to fix rates- when such rules and/or rates are
meant to apply to all enterprises of a given kind throughout
the Philippines-may partake of a legislative character, such
is not the nature of the order complained of. Indeed, the
same applies exclusively to petitioner herein. What is
 37

more, it is predicated upon the finding of fact-based upon a

report submitted by the General Auditing Office-that
petitioner is making a profit of more than 12% of its
invested capital, which is denied by petitioner. Obviously,
the latter is entitled to cross-examine the maker of said
report, and to introduce evidence to disprove the contents
thereof and/or explain or complement the same, as well as
to refute the conclusion drawn therefrom by the
respondent. In other words, in making said finding of fact,
respondent performed a function partaking of a quasi-
judicial character, the valid exercise of which demands
previous notice and hearing.

This rule was further explained in the subsequent

case of The Central Bank of the Philippines vs. Cloribel,
et al. to wit:

It is also clear from the authorities that where the

function of the administrative body is legislative, notice of
hearing is not required by due process of law (See
Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204,
supra, where it is said: 'If the nature of the administrative
agency is essentially legislative, the requirements of notice
and hearing are not necessary. The validity of a rule of
future action which affects a group, if vested rights of
liberty or property are not involved, is not determined
according to the same rules which apply in the case of the
direct application of a policy to a specific individual) ... It
is said in 73 C.J.S. Public Administrative Bodies and
Procedure, sec. 130, pages 452 and 453: 'Aside from
statute, the necessity of notice and hearing in an
administrative proceeding depends on the character of the
proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of
administrative proceedings, it may be stated as a general
rule that notice and hearing are not essential to the validity
of administrative action where the administrative body acts
in the exercise of executive, administrative, or legislative
functions; but where a public administrative body acts in a
judicial or quasi-judicial matter, and its acts are particular
and immediate rather than general and prospective, the
person whose rights or property may be affected by the
action is entitled to notice and hearing.

The order in question which was issued by

respondent Alcuaz no doubt contains all the attributes of a
quasi-judicial adjudication. Foremost is the fact that said
order pertains exclusively to petitioner and to no other.
Further, it is premised on a finding of fact, although
patently superficial, that there is merit in a reduction of
some of the rates charged- based on an initial evaluation of
petitioner's financial statements-without affording
petitioner the benefit of an explanation as to what
particular aspect or aspects of the financial statements
warranted a corresponding rate reduction. No
 38

rationalization was offered nor were the attending

contingencies, if any, discussed, which prompted
respondents to impose as much as a fifteen percent (15%)
rate reduction. It is not far-fetched to assume that petitioner
could be in a better position to rationalize its rates vis-a-vis
the viability of its business requirements. The rates it
charges result from an exhaustive and detailed study it
conducts of the multi-faceted intricacies attendant to a
public service undertaking of such nature and magnitude.
We are, therefore, inclined to lend greater credence to
petitioner's ratiocination that an immediate reduction in its
rates would adversely affect its operations and the quality
of its service to the public considering the maintenance
requirements, the projects it still has to undertake and the
financial outlay involved. Notably, petitioner was not even
afforded the opportunity to cross-examine the inspector
who issued the report on which respondent NTC based its
questioned order.

At any rate, there remains the categorical admission

made by respondent NTC that the questioned order was
issued pursuant to its quasi-judicial functions. It, however,
insists that notice and hearing are not necessary since the
assailed order is merely incidental to the entire proceedings
and, therefore, temporary in nature. This postulate is bereft
of merit.

g. May rules and regulations promulgated by administrative bodies/agencies

have the force of law? penal law? In order to be considered as one with the force
and effect of a penal law, what conditions must concur? See U.S. vs.
GRIMMAUD, 220 U.S. 506 (1911) or the 1987 PHILIPPINE CONSTITUTION -
a reviewer - Primer by FR. JOAQUIN BERNAS, 1987 edition.

5. PEO. VS. ROSENTHAL, 68 Phil. 328

6. US VS. BARRIAS, 11 Phil. 327
7. VILLEGAS VS. HIU CHIONG TSAI PAO HO, 86 SCRA 270

h. Delegation to the people. See Section 2(1) of Art. XVII.

i. Classify the membership of the legislative department.

j. Manner of election and selection

1) Read again TUPAS VS. OPLE, 137 SCRA 108

Sections 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 for by law.

Section 3. No person shall be a Senator unless he is a

natural-born citizen of the Philippines, and, on the day of
the election, is at least 35 years of age, able to read and
write, a registered voter, and a resident of the Philippines
for not less than 2 years immediately preceding the day of
the election.
 39

Section 4. The term of office of the Senators shall be six

years and shall commence, unless otherwise provided by
law, at noon on the 30th 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.

Qualifications, term of office, etc., of a senator

or member of the House of Representatives.

Drug-testing requirement on all candidates

before their certificates of candidacy will be
admitted by the COMELEC,
unconstitutional.

SOCIAL JUSTICE SOCIETY (SJS)

DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),

ATTY. MANUEL J. LASERNA, JR vs.

DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT

AQUILINO Q. PIMENTEL, JR. Vsa.

COMMISSION ON ELECTIONS,
G.R. No. 161658, November 3, 2008

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act

No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002, insofar as it requires mandatory drug testing of [1]candidates for public
office, [2]students of secondary and tertiary schools, [3]officers and employees of
public and private offices, and[4] persons charged before the prosecutor’s office
with certain offenses, among other personalities, is put in issue.

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

SEC. 36. Authorized Drug Testing.—Authorized drug testing

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

xxxx
 40

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

secondary and tertiary schools shall, pursuant to the related rules and
regulations as contained in the school’s student handbook and with
notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.—

Officers and employees of public and private offices, whether
domestic or overseas, shall be subjected to undergo a random drug test
as contained in the company’s work rules and regulations, x x x for
purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt with
administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code
and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor’s office with a

criminal offense having an imposable penalty of imprisonment of not
less than six (6) years and one (1) day shall undergo a mandatory drug
test;

(g) All candidates for public office whether appointed or elected

both in the national or local government shall undergo a mandatory
drug test.

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

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

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

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

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

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

SEC. 36. Authorized Drug Testing.—x x x

xxxx

(g) All candidates for public office x x x both in the national or

local government shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution

provides that public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug

test, the public will know the quality of candidates they are electing
 41

and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the

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

SECTION 1. Coverage.—All candidates for public office, both

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

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with

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

SEC. 4. Preparation and publication of names of candidates.—

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

SEC. 5. Effect of failure to undergo mandatory drug test and file

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

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

candidate for re-election in the May 10, 2004 elections, 5[1] filed a Petition for
Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g)
of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for
being unconstitutional in that they impose a qualification for candidates for
senators in addition to those already provided for in the 1987 Constitution; and (2)
to enjoin the COMELEC from implementing Resolution No. 6486.

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

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

born citizen of the Philippines, and, on the day of the election, is at
least thirty-five years of age, able to read and write, a registered voter,
and a resident of the Philippines for not less than two years
immediately preceding the day of the election.
5 [1]
Re-elected as senator in the 2004 elections.
 42

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

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

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

Drugs Board and Philippine Drug Enforcement Agency)

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

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

Drugs Board and Philippine Drug Enforcement Agency)

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

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the
matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB
and PDEA assert, SJS and Laserna failed to allege any incident amounting to a
violation of the constitutional rights mentioned in their separate petitions. 6[2]

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

connection with a bona fide controversy which involves the statute sought to be
reviewed.7[3] But even with the presence of an actual case or controversy, the
Court may refuse to exercise judicial review unless the constitutional question is
brought before it by a party having the requisite standing to challenge it. 8[4] To
have standing, one must establish that he or she has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury is likely to be
redressed by a favorable action.9[5]

6 [2]
Rollo (G.R. No. 158633), pp. 184-185.
7 [3]
Dumlao v. COMELEC, No. L-52245, January 22, 1980, 95 SCRA 392, 401.
8 [4]
Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 939 (2003).
9 [5]
Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740.
 43

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

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

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose
an additional qualification for candidates for senator? Corollarily, can Congress
enact a law prescribing qualifications for candidates for senator in addition to
those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right to privacy, the
right against unreasonable searches and seizure, and the equal protection clause?
Or do they constitute undue delegation of legislative power?

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

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

Resolution No. 6486 illegally impose an additional qualification on candidates for
senator. He points out that, subject to the provisions on nuisance candidates, a
candidate for senator needs only to meet the qualifications laid down in Sec. 3,
Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated qualification
requirements, candidates for senator need not possess any other qualification to
run for senator and be voted upon and elected as member of the Senate. The
Congress cannot validly amend or otherwise modify these qualification standards,
as it cannot disregard, evade, or weaken the force of a constitutional mandate, 11[7]
or alter or enlarge the Constitution.

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

should be, as it is hereby declared as, unconstitutional. It is basic that if a law or
an administrative rule violates any norm of the Constitution, that issuance is null
and void and has no effect. The Constitution is the basic law to which all laws
must conform; no act shall be valid if it conflicts with the Constitution. 12[8] In the
discharge of their defined functions, the three departments of government have no
choice but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed.13[9]

10 [6]
Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 & 127867, November 5, 1997, 281 SCRA 330, 349; De Guia
v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
11 [7]
Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.
12 [8]
Cruz, CONSTITUTIONAL LAW 4 (2000).
13 [9]
Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36 SCRA 228, 234.
 44

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

Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting
under delegated authority, the powers of each of the departments x x x
are limited and confined within the four walls of the constitution or the
charter, and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is the
shore of legislative authority against which the waves of legislative
enactment may dash, but over which it cannot leap. 14[10]

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

substantive and constitutional limitations which circumscribe both the exercise of
the power itself and the allowable subjects of legislation. 15[11] The substantive
constitutional limitations are chiefly found in the Bill of Rights 16[12] and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the
qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to implement
Sec. 36(g), validly impose qualifications on candidates for senator in addition to
what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the democratic process of election
should not be defeated by unwarranted impositions of requirement not otherwise
specified in the Constitution.17[13]

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed

COMELEC resolution, effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g)
unmistakably requires a candidate for senator to be certified illegal-drug clean,
obviously as a pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted upon and, if
proper, be proclaimed as senator-elect. The COMELEC resolution completes the
chain with the proviso that “[n]o person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test.”
Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to what the
1987 Constitution, at the minimum, requires for membership in the Senate.
Whether or not the drug-free bar set up under the challenged provision is to be
hurdled before or after election is really of no moment, as getting elected would
be of little value if one cannot assume office for non-compliance with the drug-
testing requirement.

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

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

14 [10]
50 Phil. 259, 309 (1927).
15 [11]
J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 604 (1996).
16 [12]
Id.
17 [13]
See concurring opinion in Go v. Commision on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, 753.
 45

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

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees, while
mandatory, is a random and suspicionless arrangement. The objective is to stamp
out illegal drug and safeguard in the process “the well being of [the] citizenry,
particularly the youth, from the harmful effects of dangerous drugs.” This
statutory purpose, per the policy-declaration portion of the law, can be achieved
via the pursuit by the state of “an intensive and unrelenting campaign against the
trafficking and use of dangerous drugs x x x through an integrated system of
planning, implementation and enforcement of anti-drug abuse policies, programs
and projects.”18[14] The primary legislative intent is not criminal prosecution, as
those found positive for illegal drug use as a result of this random testing are not
necessarily treated as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of
RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to

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

xxxx

Sec. 55. Exemption from the Criminal Liability Under the

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

xxxx

School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing nervous systems
of the young are more critically impaired by intoxicants and are more inclined to
drug dependency. Their recovery is also at a depressingly low rate. 19[15]

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

facet of the right protected by the guarantee against unreasonable search and
seizure20[16] under Sec. 2, Art. III21[17] of the Constitution. But while the right to
privacy has long come into its own, this case appears to be the first time that the
validity of a state-decreed search or intrusion through the medium of mandatory
random drug testing among students and employees is, in this jurisdiction, made
18[14]
RA 9165, Sec. 2.
19 [15]
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661.
20 [16]
Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22
SCRA 424, 444-445.
21 [17]
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the person or things to be seized.
 46

the focal point. Thus, the issue tendered in these proceedings is veritably one of
first impression.

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

With respect to random drug testing among school children, we turn to the
teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie County, et al. v.
Earls, et al. (Board of Education),22[18] both fairly pertinent US Supreme Court-
decided cases involving the constitutionality of governmental search.

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

the drug menace in their respective institutions following the discovery of
frequent drug use by school athletes. After consultation with the parents, they
required random urinalysis drug testing for the school’s athletes. James Acton, a
high school student, was denied participation in the football program after he
refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming
that the school’s drug testing policy violated, inter alia, the Fourth
Amendment23[19] of the US Constitution.

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

Vernonia, considered the following: (1) schools stand in loco parentis over their
students; (2) school children, while not shedding their constitutional rights at the
school gate, have less privacy rights; (3) athletes have less privacy rights than
non-athletes since the former observe communal undress before and after sports
events; (4) by joining the sports activity, the athletes voluntarily subjected
themselves to a higher degree of school supervision and regulation; (5) requiring
urine samples does not invade a student’s privacy since a student need not undress
for this kind of drug testing; and (6) there is need for the drug testing because of
the dangerous effects of illegal drugs on the young. The US Supreme Court held
that the policy constituted reasonable search under the Fourth 24[20] and 14th
Amendments and declared the random drug-testing policy constitutional.

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

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

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

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

22 [18]
536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS 224-227 (2004).
23 [19]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
24 [20]
The Fourth Amendment is almost similar to Sec. 2, Art. III of the Constitution, except that the latter limited the determination of
probable cause to a judge after an examination under oath of the complainant and his witnesses. Hence, pronouncements of the US Federal
Supreme Court and State Appellate Court may be considered doctrinal in this jurisdiction, unless they are manifestly contrary to our
Constitution. See Herrera, HANDBOOK ON ARREST, SEARCH AND SEIZURE 8 (2003).
 47

In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators stand in loco
parentis with respect to their students; (2) minor students have contextually fewer
rights than an adult, and are subject to the custody and supervision of their
parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to
safeguard the health and well-being of their students and may adopt such
measures as may reasonably be necessary to discharge such duty; and (4) schools
have the right to impose conditions on applicants for admission that are fair, just,
and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so
holds that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure,
the right to enroll is not absolute; it is subject to fair, reasonable, and equitable
requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in
the country that threatens the well-being of the people, 25[21] particularly the youth
and school children who usually end up as victims. Accordingly, and until a more
effective method is conceptualized and put in motion, a random drug testing of
students in secondary and tertiary schools is not only acceptable but may even be
necessary if the safety and interest of the student population, doubtless a
legitimate concern of the government, are to be promoted and protected. To
borrow from Vernonia, “[d]eterring drug use by our Nation’s schoolchildren is as
important as enhancing efficient enforcement of the Nation’s laws against the
importation of drugs”; the necessity for the State to act is magnified by the fact
that the effects of a drug-infested school are visited not just upon the users, but
upon the entire student body and faculty. 26[22] Needless to stress, the random
testing scheme provided under the law argues against the idea that the testing aims
to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory
but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees
of public and private offices is justifiable, albeit not exactly for the same reason.
The Court notes in this regard that petitioner SJS, other than saying that
“subjecting almost everybody to drug testing, without probable cause, is
unreasonable, an unwarranted intrusion of the individual right to privacy,” 27[23] has
failed to show how the mandatory, random, and suspicionless drug testing under
Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes
unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.28[24] Petitioner Laserna’s lament is just as simplistic, sweeping, and
gratuitous and does not merit serious consideration. Consider what he wrote
without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have

made various rulings on the constitutionality of mandatory drug tests
in the school and the workplaces. The US courts have been consistent

25 [21]
Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96.
26 [22]
Rollo (G.R. No. 158633), p. 204, respondents’ Consolidated Memorandum.
27 [23]
Rollo (G.R. No. 157870), p. 10.
28 [24]
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.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the person or things to be seized.
 48

in their rulings that the mandatory drug tests violate a citizen’s

constitutional right to privacy and right against unreasonable search
and seizure. They are quoted extensively hereinbelow. 29[25]

The essence of privacy is the right to be left alone. 30[26] In context, the right
to privacy means the right to be free from unwarranted exploitation of one’s
person or from intrusion into one’s private activities in such a way as to cause
humiliation to a person’s ordinary sensibilities. 31[27] And while there has been
general agreement as to the basic function of the guarantee against unwarranted
search, “translation of the abstract prohibition against ‘unreasonable searches and
seizures’ into workable broad guidelines for the decision of particular cases is a
difficult task,” to borrow from C. Camara v. Municipal Court.32[28] Authorities are
agreed though that the right to privacy yields to certain paramount rights of the
public and defers to the state’s exercise of police power. 33[29]

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

and as has been held, “reasonableness” is the touchstone of the validity of a
government search or intrusion.34[30] And whether a search at issue hews to the
reasonableness standard is judged by the balancing of the government-mandated
intrusion on the individual’s privacy interest against the promotion of some
compelling state interest.35[31] In the criminal context, reasonableness requires
showing of probable cause to be personally determined by a judge. Given that the
drug-testing policy for employees––and students for that matter––under RA 9165
is in the nature of administrative search needing what was referred to in Vernonia
as “swift and informal disciplinary procedures,” the probable-cause standard is not
required or even practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in question.

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

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

Just as defining as the first factor is the character of the intrusion authorized
by the challenged law. Reduced to a question form, is the scope of the search or
intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law
authorizing a search “narrowly drawn” or “narrowly focused”? 36[32]

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

9165 and its implementing rules and regulations (IRR), as couched, contain
provisions specifically directed towards preventing a situation that would unduly
embarrass the employees or place them under a humiliating experience. While
every officer and employee in a private establishment is under the law deemed
29 [25]
Rollo (G.R. No. 158633), p. 9.
30[26]
Ople, supra note 16, at 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932].
31 [27]
62 Am. Jur. 2d, Privacy, Sec. 1.
32 [28]
387 U.S. 523; cited in 2 Bernas, supra note 18, at 232.
33 [29]
62 Am. Jur. 2d, Privacy, Sec. 17.
34[30]
Vernonia & Board of Education, supra notes 15 & 18.
35 [31]
Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra.
36 [32]
Supra note 16, at 166 & 169.
 49

forewarned that he or she may be a possible subject of a drug test, nobody is really
singled out in advance for drug testing. The goal is to discourage drug use by not
telling in advance anyone when and who is to be tested. And as may be observed,
Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by
providing that the employees concerned shall be subjected to “random drug test as
contained in the company’s work rules and regulations x x x for purposes of
reducing the risk in the work place.”

For another, the random drug testing shall be undertaken under conditions
calculated to protect as much as possible the employee’s privacy and dignity. As to
the mechanics of the test, the law specifies that the procedure shall employ two
testing methods, i.e., the screening test and the confirmatory test, doubtless to
ensure as much as possible the trustworthiness of the results. But the more
important consideration lies in the fact that the test shall be conducted by trained
professionals in access-controlled laboratories monitored by the Department of
Health (DOH) to safeguard against results tampering and to ensure an accurate
chain of custody.37[33] In addition, the IRR issued by the DOH provides that access
to the drug results shall be on the “need to know” basis; 38[34] that the “drug test
result and the records shall be [kept] confidential subject to the usual accepted
practices to protect the confidentiality of the test results.” 39[35] Notably, RA 9165
does not oblige the employer concerned to report to the prosecuting agencies any
information or evidence relating to the violation of the Comprehensive Dangerous
Drugs Act received as a result of the operation of the drug testing. All told,
therefore, the intrusion into the employees’ privacy, under RA 9165, is
accompanied by proper safeguards, particularly against embarrassing leakages of
test results, and is relatively minimal.

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

the country and thus protect the well-being of the citizens, especially the youth,
from the deleterious effects of dangerous drugs. The law intends to achieve this
through the medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory random drug test. 40[36]
To the Court, the need for drug testing to at least minimize illegal drug use is
substantial enough to override the individual’s privacy interest under the premises.
The Court can consider that the illegal drug menace cuts across gender, age group,
and social- economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an
investor’s dream were it not for the illegal and immoral components of any of
such activities. The drug problem has hardly abated since the martial law public
execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern-day scourge. Drug enforcement agencies
perceive a mandatory random drug test to be an effective way of preventing and
deterring drug use among employees in private offices, the threat of detection by
random testing being higher than other modes. The Court holds that the chosen
method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of
privacy on the part of the employees, the compelling state concern likely to be met
by the search, and the well-defined limits set forth in the law to properly guide
authorities in the conduct of the random testing, we hold that the challenged drug
37 [33]
Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation of Drug Laboratories, a laboratory is required to use
documented chain of custody procedures to maintain control and custody of specimens.
38 [34]
DOH IRR Governing Licensing and Accreditation of Drug Laboratories, Sec. 7 [10.3] provides that the original copy of the test
results form shall be given to the client/donor, copy furnished the DOH and the requesting agency.
39 [35]
Id., Sec. 7 [10.4].
40 [36]
Secs. 47 and 48 of RA 9165 charge the Department of Labor and Employment with the duty to develop and promote a national
drug prevention program and the necessary guidelines in the work place, which shall include a mandatory drafting and adoption of policies to
achieve a drug-free workplace.
 50

test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and

employees also labor under reasonable supervision and restrictions imposed by the
Civil Service law and other laws on public officers, all enacted to promote a high
standard of ethics in the public service. 41[37] And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it should pass the test
for civil servants, who, by constitutional command, are required to be accountable
at all times to the people and to serve them with utmost responsibility and
efficiency.42[38]

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

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

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

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

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

constitutional landscape.43[39] In the face of the increasing complexity of the task
of the government and the increasing inability of the legislature to cope directly
with the many problems demanding its attention, resort to delegation of power, or
entrusting to administrative agencies the power of subordinate legislation, has
become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court
finds no valid justification for mandatory drug testing for persons accused of
crimes. In the case of students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students emanates primarily from the
waiver by the students of their right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons to the parental authority of
school authorities. In the case of private and public employees, the constitutional
41[37]
CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND EMPLOYEES, Sec. 2.
42 [38]
CONSTITUTION, Art. XI, Sec. 1.
43 [39]
Tatad, supra note 6, at 351.
 51

soundness of the mandatory, random, and suspicionless drug testing proceeds

from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before
the public prosecutor’s office with criminal offenses punishable with six (6) years
and one (1) day imprisonment. The operative concepts in the mandatory drug
testing are “randomness” and “suspicionless.” In the case of persons charged with
a crime before the prosecutor’s office, a mandatory drug testing can never be
random or suspicionless. The ideas of randomness and being suspicionless are
antithetical to their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against
their will. The persons thus charged, by the bare fact of being haled before the
prosecutor’s office and peaceably submitting themselves to drug testing, if that be
the case, do not necessarily consent to the procedure, let alone waive their right to
privacy.44[40] To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would violate a
persons’ right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.

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

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

Sections 5. [1] The House of representatives shall be

composed of not more than 250 members, unless
otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those
who, as provided by law, shall be elected through a
party-list system of registered national, regional and
sectoral parties or organizations.

[2] The party-list representatives shall constitute

20% of the total number of representatives including
those under the party-list. For three (3) consecutive terms
after the ratification of this Constitution, ½ of the seats
allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities,
women youth, and such other sectors, as may be provided
by law, except the religious sector.

44 [40]
Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, CONST. LIM. 630 (8th ed.).
 52

[3] Each legislative district shall comprise, as far as

practicable, contiguous, compact and adjacent territory.
Each city with a population of at least one hundred fifty
thousand, or each province, shall have at least one
representative.
[4] Within 3 years following the return of every
census, the Congress shall make a reapportionment of
legislative districts based on standards provided in this
section

Re-apportionment of a single legislative district

to make it two (2) like Cagayan de Oro City.
Must there be a plebiscite first before a law
adding another legislative district to a city or
province as a result of increase in its income
and population is considered valid and
enforceable? Is Section 10, Art. X of the
Constitution applicable in the creation of
additional legislative districts?

ROGELIO BAGABUYO VS. COMELEC, G.R. No.

176970, December 8, 2008

Before us is the petition for certiorari, prohibition, and mandamus,45[1]

with a prayer for the issuance of a temporary restraining order and a writ of
preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent
the Commission on Elections (COMELEC) from implementing Resolution
No. 7837 on the ground that Republic Act No. 9371 46[2] – the law that
Resolution No. 7837 implements – is unconstitutional.

BACKGROUND FACTS

On October 10, 2006, Cagayan de Oro’s then Congressman

Constantino G. Jaraula filed and sponsored House Bill No. 5859: “An Act
Providing for the Apportionment of the Lone Legislative District of the City
of Cagayan De Oro.”47[3] This law eventually became Republic Act (R.A.)
No. 9371.48[4] It increased Cagayan de Oro’s legislative district from one to
two. For the election of May 2007, Cagayan de Oro’s voters would be
classified as belonging to either the first or the second district, depending on
their place of residence. The constituents of each district would elect their
own representative to Congress as well as eight members of the
Sangguniang Panglungsod.

Section 1 of R.A. No. 9371 apportioned the City’s barangays as

follows:
Legislative Districts – The lone legislative district of the
City of Cagayan De Oro is hereby apportioned to commence in
the next national elections after the effectivity of this Act.
Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen,
Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao,
45 [1]
Under Rule 65 of the Rules of Court.
46 [2]
“An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro.”
47 [3]
Rollo, p. 214.
48 [4]
Id., p. 25.
 53

Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya,

Dansulihon, Tignapoloan and Bisigan shall comprise the first
district while barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa,
Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and
Balubal and all urban barangays from Barangay 1 to Barangay
40 shall comprise the second district.49[5]

On March 13, 2007, the COMELEC en Banc promulgated Resolution

No. 783750[6] implementing R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present petition against the

COMELEC on March 27, 2007.51[7] On 10 April 2008, the petitioner
amended the petition to include the following as respondents: Executive
Secretary Eduardo Ermita; the Secretary of the Department of Budget and
Management; the Chairman of the Commission on Audit; the Mayor and the
members of the Sangguniang Panglungsod of Cagayan de Oro City; and its
Board of Canvassers.52[8]

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837
on constitutional grounds, the petitioner argued that the COMELEC cannot
implement R.A. No. 9371 without providing for the rules, regulations and
guidelines for the conduct of a plebiscite which is indispensable for the
division or conversion of a local government unit. He prayed for the
issuance of an order directing the respondents to cease and desist from
implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to
revert instead to COMELEC Resolution No. 7801 which provided for a
single legislative district for Cagayan de Oro.

Since the Court did not grant the petitioner’s prayer for a temporary
restraining order or writ of preliminary injunction, the May 14 National and
Local Elections proceeded according to R.A. No. 9371 and Resolution No.
7837.

The respondent’s Comment on the petition, filed through the Office of the
Solicitor General, argued that: 1) the petitioner did not respect the hierarchy
of courts, as the Regional Trial Court (RTC) is vested with concurrent
jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No.
9371 merely increased the representation of Cagayan de Oro City in the
House of Representatives and Sangguniang Panglungsod pursuant to
Section 5, Article VI of the 1987 Constitution; 3) the criteria established
under Section 10, Article X of the 1987 Constitution only apply when there
is a creation, division, merger, abolition or substantial alteration of
boundaries of a province, city, municipality, or barangay; in this case, no
such creation, division, merger, abolition or alteration of boundaries of a
local government unit took place; and 4) R.A. No. 9371 did not bring about
any change in Cagayan de Oro’s territory, population and income
classification; hence, no plebiscite is required.

The petitioner argued in his reply that: 1) pursuant to the Court’s ruling in
Del Mar v. PAGCOR,53[9] the Court may take cognizance of this petition if
compelling reasons, or the nature and importance of the issues raised,
49 [5]
Id., p. 25.
50 [6]
Id., pp. 23-24.
51 [7]
Id., pp. 3-22.
52 [8]
Id., pp. 60-93
53 [9]
G.R. No. 138298, November 29, 2000, 346 SCRA 485.
 54

warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City’s

reapportionment under R.A. No. 9371 falls within the meaning of creation,
division, merger, abolition or substantial alteration of boundaries of cities
under Section 10, Article X of the Constitution; 3) the creation, division,
merger, abolition or substantial alteration of boundaries of local government
units involve a common denominator – the material change in the political
and economic rights of the local government units directly affected, as well
as of the people therein; 4) a voter’s sovereign power to decide on who
should be elected as the entire city’s Congressman was arbitrarily reduced
by at least one half because the questioned law and resolution only allowed
him to vote and be voted for in the district designated by the COMELEC; 5)
a voter was also arbitrarily denied his right to elect the Congressman and the
members of the city council for the other legislative district, and 6)
government funds were illegally disbursed without prior approval by the
sovereign electorate of Cagayan De Oro City. 54[10]

THE ISSUES

The core issues, based on the petition and the parties’ memoranda, can be
limited to the following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the
instant petition be dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative
reapportionment of Cagayan de Oro City, or does it involve the
division and conversion of a local government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the
petition totally without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for

certiorari, prohibition, mandamus, quo warranto, and habeas corpus.55[11] It
was pursuant to this original jurisdiction that the petitioner filed the present
petition.

While this jurisdiction is shared with the Court of Appeals 56[12] and the
RTCs,57[13] a direct invocation of the Supreme Court’s jurisdiction is allowed
only when there are special and important reasons therefor, clearly and
especially set out in the petition. Reasons of practicality, dictated by an
increasingly overcrowded docket and the need to prioritize in favor of
matters within our exclusive jurisdiction, justify the existence of this rule
otherwise known as the “principle of hierarchy of courts.” More generally
stated, the principle requires that recourse must first be made to the lower-
ranked court exercising concurrent jurisdiction with a higher court. 58[14]
54 [10]
Rollo, pp. 123-148.

55 [11]
CONSTITUTION, Article VIII, Section 5(1).
56 [12]
Sec. 9 (1), B.P. Blg. 129.
57 [13]
Sec. 21 (1), B.P. Blg. 129.
58 [14]
See: People v. Cuaresma, G.R. No. 67787, April 18, 1989, 172 SCRA 415.
 55

Among the cases we have considered sufficiently special and

important to be exceptions to the rule, are petitions for certiorari,
prohibition, mandamus and quo warranto against our nation’s lawmakers
when the validity of their enactments is assailed. 59[15] The present petition is
of this nature; its subject matter and the nature of the issues raised – among
them, whether legislative reapportionment involves a division of Cagayan de
Oro City as a local government unit – are reasons enough for considering it
an exception to the principle of hierarchy of courts. Additionally, the
petition assails as well a resolution of the COMELEC en banc issued to
implement the legislative apportionment that R.A. No. 9371 decrees. As an
action against a COMELEC en banc resolution, the case falls under Rule 64
of the Rules of Court that in turn requires a review by this Court via a Rule
65 petition for certiorari.60[16] For these reasons, we do not see the principle
of hierarchy of courts to be a stumbling block in our consideration of the
present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City
of Cagayan de Oro as a local government unit, and does not merely provide
for the City’s legislative apportionment. This argument essentially proceeds
from a misunderstanding of the constitutional concepts of apportionment of
legislative districts and division of local government units.

Legislative apportionment is defined by Black’s Law Dictionary as

the determination of the number of representatives which a State, county or
other subdivision may send to a legislative body. 61[17] It is the allocation of
seats in a legislative body in proportion to the population; the drawing of
voting district lines so as to equalize population and voting power among
the districts.62[18] Reapportionment, on the other hand, is the realignment
or change in legislative districts brought about by changes in population
and mandated by the constitutional requirement of equality of
representation.63[19]

Article VI (entitled Legislative Department) of the 1987 Constitution

lays down the rules on legislative apportionment under its Section 5 which
provides:
Sec. 5(1). (1) The House of Representatives shall be
composed of not more than two hundred fifty members unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional and sectoral parties or organizations.

xxx

59 [15]
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
60 [16]
See: Bautista v. COMELEC, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.
61 [17]
Black’s Law Dictionary, 5th Edition, p. 91.
62 [18]
Clapp, James E., Dictionary of Law (2000), p. 33.
63 [19] Black’s Law Dictionary,
supra note 17, p. 1137.
 56

(3) Each legislative district shall comprise, as far as

practicable, continuous, compact, and adjacent territory. Each
city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative.

(4) Within three years following the return of every

census, the Congress shall make a reapportionment of legislative
districts based on the standards provided in this section.

Separately from the legislative districts that legal apportionment or

reapportionment speaks of, are the local government units (historically and
generically referred to as “municipal corporations”) that the Constitution
itself classified into provinces, cities, municipalities and barangays.64[20] In
its strict and proper sense, a municipality has been defined as “a body politic
and corporate constituted by the incorporation of the inhabitants of a city or
town for the purpose of local government thereof.” 65[21] The creation,
division, merger, abolition or alteration of boundary of local government
units, i.e., of provinces, cities, municipalities, and barangays, are covered by
the Article on Local Government (Article X). Section 10 of this Article
provides:

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 unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the

Constitution, the authority to act has been vested in the Legislature. The
Legislature undertakes the apportionment and reapportionment of legislative
districts,66[22] and likewise acts on local government units by setting the
standards for their creation, division, merger, abolition and alteration of
boundaries and by actually creating, dividing, merging, abolishing local
government units and altering their boundaries through legislation. Other
than this, not much commonality exists between the two provisions since
they are inherently different although they interface and relate with one
another.

The concern that leaps from the text of Article VI, Section 5 is
political representation and the means to make a legislative district
sufficiently represented so that the people can be effectively heard. As
above stated, the aim of legislative apportionment is “to equalize population
and voting power among districts.”67[23] Hence, emphasis is given to the
number of people represented; the uniform and progressive ratio to be
observed among the representative districts; and accessibility and
commonality of interests in terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the people
represented, every city with at least 250,000 people and every province
(irrespective of population) is entitled to one representative. In this sense,
legislative districts, on the one hand, and provinces and cities, on the other,
relate and interface with each other. To ensure continued adherence to the

64 [20]
CONSTITUTION, Art. X, Sec. 1.
65 [21]
Martin, Public Corporations, Revised 1983 Edition, p. 5.
66 [22]
Article VI, Section 5; Montejo v. COMELEC, 312 Phil. 492 (1995).
67 [23]
Supra note 18.
 57

required standards of apportionment, Section 5(4) specifically mandates

reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI,

Section 5, Article X, Section 10 expressly speaks of how local government
units may be “created, divided, merged, abolished, or its boundary
substantially altered.” Its concern is the commencement, the termination,
and the modification of local government units’ corporate existence and
territorial coverage; and it speaks of two specific standards that must be
observed in implementing this concern, namely, the criteria established in
the local government code and the approval by a majority of the votes cast
in a plebiscite in the political units directly affected. Under the Local
Government Code (R.A. No. 7160) passed in 1991, the criteria of income,
population and land area are specified as verifiable indicators of viability
and capacity to provide services.68[24] The division or merger of existing
units must comply with the same requirements (since a new local
government unit will come into being), provided that a division shall not
reduce the income, population, or land area of the unit affected to less than
the minimum requirement prescribed in the Code. 69[25]

A pronounced distinction between Article VI, Section 5 and, Article X,

Section 10 is on the requirement of a plebiscite. The Constitution and the
Local Government Code expressly require a plebiscite to carry out any
creation, division, merger, abolition or alteration of boundary of a local
government unit.70[26] In contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. In Tobias v. Abalos,71[27] a
case that arose from the division of the congressional district formerly
covering San Juan and Mandaluyong into separate districts, we confirmed
this distinction and the fact that no plebiscite is needed in a legislative
reapportionment. The plebiscite issue came up because one was ordered and
held for Mandaluyong in the course of its conversion into a highly urbanized
city, while none was held for San Juan. In explaining why this happened,
the Court ruled that no plebiscite was necessary for San Juan because the
objective of the plebiscite was the conversion of Mandaluyong into a highly
urbanized city as required by Article X, Section 10 the Local Government
Code; the creation of a new legislative district only followed as a
consequence. In other words, the apportionment alone and by itself did not
call for a plebiscite, so that none was needed for San Juan where only a
reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of
requirement for one under Article VI, Section 5 can best be appreciated by a
consideration of the historical roots of these two provisions, the nature of the
concepts they embody as heretofore discussed, and their areas of
application.

A Bit of History.

68 [24]
Section 7, Local Government Code.
69 [25]
CONSTITUTION, Art. X, Sec. 10.
70 [26]
SEC. 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.
71 [27]
G.R. No. 114783, December 8, 1994, 239 SCRA 106.
 58

In Macias v. COMELEC,72[28] we first jurisprudentially acknowledged

the American roots of our apportionment provision, noting its roots from the
fourteenth Amendment73[29] of the U.S. Constitution and from the
constitutions of some American states. The Philippine Organic Act of 1902
created the Philippine Assembly, 74[30] the body that acted as the lower house
of the bicameral legislature under the Americans, with the Philippine
Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the
conformity of the U.S. Senate, the members of the Philippine Assembly
were elected by representative districts previously delineated under the
Philippine Organic Act of 1902 pursuant to the mandate to apportion the
seats of the Philippine Assembly among the provinces as nearly as
practicable according to population. Thus, legislative apportionment first
started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained

the apportionment provision, dividing the country into 12 senate districts
and 90 representative districts electing one delegate each to the House of
Representatives. Section 16 of the Act specifically vested the Philippine
Legislature with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the

concept of legislative apportionment together with “district” as the basic unit
of apportionment; the concern was “equality of representation . . . as an
essential feature of republican institutions” as expressed in the leading case
of Macias v. COMELEC.75[31] The case ruled that inequality of
representation is a justiciable, not a political issue, which ruling was
reiterated in Montejo v. COMELEC.76[32] Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that
followed, as no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of

equal representation “in accordance with the number of their respective
inhabitants and on the basis of a uniform and progressive ratio” with each
district being, as far as practicable, contiguous, compact and adjacent
territory. This formulation was essentially carried over to the 1987
Constitution, distinguished only from the previous one by the presence of
party-list representatives. In neither Constitution was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition

of local government units was not constitutionally enshrined until the 1973
Constitution. However, as early as 1959, R.A. No. 2264 77[33] required, in the
creation of barrios by Provincial Boards, that the creation and definition of
boundaries be “upon petition of a majority of the voters in the areas
affected.” In 1961, the Charter of the City of Caloocan (R.A. No. 3278)
carried this further by requiring that the “Act shall take effect after a
majority of voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite.” This was
followed up to 1972 by other legislative enactments requiring a plebiscite as

72 [28]
G.R. No. L-18684, September 14, 1961, 113 Phil. 1 (1961).
73 [29]
The Fourteenth Amendment of the U.S. Constitution provides the basis for the requirement of an equitable
apportionment scheme. See generally, Colegrove v. Green, 328 U.S. 549, cited in Macias v. COMELEC, supra note 28.
74 [30]
People v. Santiago, 43 Phil 120 (1922).
75 [31]
Supra note 28.
76 [32]
G.R. No. 118702, March 16, 1995.
77 [33]
“An Act Amending the Laws Governing Local Governments by Increasing their Autonomy and
Reorganizing Provincial Governments.”
 59

a condition for the creation and conversion of local government units as well
as the transfer of sitios from one legislative unit to another.78[34] In 1973, the
plebiscite requirement was accorded constitutional status.

Under these separate historical tracks, it can be seen that the holding of
a plebiscite was never a requirement in legislative apportionment or
reapportionment. After it became constitutionally entrenched, a plebiscite
was also always identified with the creation, division, merger, abolition and
alteration of boundaries of local government units, never with the concept of
legislative apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a

sense, be called a political unit because it is the basis for the election of a
member of the House of Representatives and members of the local
legislative body. It is not, however, a political subdivision through which
functions of government are carried out. It can more appropriately be
described as a representative unit that may or may not encompass the whole
of a city or a province, but unlike the latter, it is not a corporate unit. Not
being a corporate unit, a district does not act for and in behalf of the people
comprising the district; it merely delineates the areas occupied by the people
who will choose a representative in their national affairs. Unlike a province,
which has a governor; a city or a municipality, which has a mayor; and a
barangay, which has a punong barangay, a district does not have its own
chief executive. The role of the congressman that it elects is to ensure that
the voice of the people of the district is heard in Congress, not to oversee the
affairs of the legislative district. Not being a corporate unit also signifies that
it has no legal personality that must be created or dissolved and has no
capacity to act. Hence, there is no need for any plebiscite in the creation,
dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and
corporate units. They are the territorial and political subdivisions of the
state.79[35] They possess legal personality on the authority of the Constitution
and by action of the Legislature. The Constitution defines them as entities
that Congress can, by law, create, divide, abolish, merge; or whose
boundaries can be altered based on standards again established by both the
Constitution and the Legislature.80[36] A local government unit’s corporate
existence begins upon the election and qualification of its chief executive
and a majority of the members of its Sanggunian.81[37]

As a political subdivision, a local government unit is an

“instrumentality of the state in carrying out the functions of
government.”82[38] As a corporate entity with a distinct and separate juridical
personality from the State, it exercises special functions for the sole benefit
of its constituents. It acts as “an agency of the community in the
78 [34]
A plebiscite was a conditio sine qua non in the creation of municipal corporations including, but not limited to, the
following: 1) the City of Angeles, R.A. 3700; 2) the Municipality of Pio Duran in the Province of Albay, R.A. 3817; 3)
the Provinces of Northern Samar, Eastern Samar and Western Samar, R.A. 4221; 4) the Provinces of Agusan del Norte
and Agusan del Sur, R.A. 4979. The prior approval of a majority of the qualified voters of certain sitios of the
Municipality of Anilao was also required before the transfer of the same sitios to the Municipality of Banate under R.A.
4614 took effect.
79 [35]
Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., G.R. No. 135962, March 27, 2000, 328 SCRA 836.
80 [36]
CONSTITUTION, Article X, Secs. 3 and 10; Aquilino Pimentel, Jr., The Local Government Code of 1991: The Key to National Development, p.
5.
81 [37]
Sec. 14, Local Government Code.
82 [38]
Lidasan v. Commission on Elections, G.R. No. L-28089 October 25, 1967, 21 SCRA 496.
 60

administration of local affairs”83[39] and the mediums through which the

people act in their corporate capacity on local concerns. 84[40] In light of these
roles, the Constitution saw it fit to expressly secure the consent of the people
affected by the creation, division, merger, abolition or alteration of
boundaries of local government units through a plebiscite.

These considerations clearly show the distinctions between a

legislative apportionment or reapportionment and the division of a local
government unit. Historically and by its intrinsic nature, a legislative
apportionment does not mean, and does not even imply, a division of a local
government unit where the apportionment takes place. Thus, the plebiscite
requirement that applies to the division of a province, city, municipality or
barangay under the Local Government Code should not apply to and be a
requisite for the validity of a legislative apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment
legislation passed in accordance with the authority granted to Congress
under Article VI, Section 5(4) of the Constitution. Its core provision –
Section 1 – provides:

SECTION 1. Legislative Districts. — The lone

legislative district of the City of Cagayan de Oro is hereby
apportioned to commence in the next national elections after the
effectivity of this Act. Henceforth, barangays Bonbon, Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San
Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan,
Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig, Indahag,
Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto,
Bugo and Balubal and all urban barangays from Barangay 1 to
Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a

political and corporate entity takes place or is mandated. Cagayan de Oro
City politically remains a single unit and its administration is not divided
along territorial lines. Its territory remains completely whole and intact;
there is only the addition of another legislative district and the delineation of
the city into two districts for purposes of representation in the House of
Representatives. Thus, Article X, Section 10 of the Constitution does not
come into play and no plebiscite is necessary to validly apportion Cagayan
de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the

creation of another congressional district in the city by providing, as
reflected in COMELEC Resolution No. 7837, for additional Sangguniang
Panglunsod seats to be voted for along the lines of the congressional
apportionment made. The effect on the Sangguniang Panglunsod, however,

83 [39]
Ibid.
84 [40]
Section 15 of the Local Government Code provides: Political and Corporate Nature of Local Government Units. - Every local
government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity
with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the
inhabitants of its territory.
 61

is not directly traceable to R.A. No. 9371 but to another law – R.A. No.
663685[41] – whose Section 3 provides:

SECTION 3. Other Cities. — The provision of any law to the

contrary notwithstanding the City of Cebu, City of Davao, and
any other city with more than one representative district shall
have eight (8) councilors for each district who shall be residents
thereof to be elected by the qualified voters therein, provided
that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo
and other cities comprising a representative district shall have
twelve (12) councilors each and all other cities shall have ten
(10) councilors each to be elected at large by the qualified voters
of the said cities: Provided, That in no case shall the present
number of councilors according to their charters be reduced.

However, neither does this law have the effect of dividing the City of
Cagayan de Oro into two political and corporate units and territories. Rather
than divide the city either territorially or as a corporate entity, the effect is
merely to enhance voter representation by giving each city voter more and
greater say, both in Congress and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro

had only one congressman and 12 city council members citywide for its
population of approximately 500,000.86[42] By having two legislative
districts, each of them with one congressman, Cagayan de Oro now
effectively has two congressmen, each one representing 250,000 of the city’s
population. In terms of services for city residents, this easily means better
access to their congressman since each one now services only 250,000
constituents as against the 500,000 he used to represent. The same goes true
for the Sangguniang Panglungsod with its ranks increased from 12 to 16
since each legislative district now has 8 councilors. In representation terms,
the fewer constituents represented translate to a greater voice for each
individual city resident in Congress and in the Sanggunian; each
congressman and each councilor represents both a smaller area and fewer
constituents whose fewer numbers are now concentrated in each
representative. The City, for its part, now has twice the number of
congressmen speaking for it and voting in the halls of Congress. Since the
total number of congressmen in the country has not increased to the point of
doubling its numbers, the presence of two congressman (instead of one)
from the same city cannot but be a quantitative and proportional
improvement in the representation of Cagayan de Oro City in Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is

unequal. District 1 has only 93,719 registered voters while District 2 has
127,071. District 1 is composed mostly of rural barangays while District 2
is composed mostly of urban barangays.87[43] Thus, R.A. No. 9371 violates
the principle of equality of representation.

A clarification must be made. The law clearly provides that the basis for
districting shall be the number of the inhabitants of a city or a province, not
85 [41]
Enacted into law on November 6, 1987.
86 [42]
As provided by COMELEC Res. No. 7801 that COMELEC Res. No. 7837 superseded.

87 [43]
Rollo, p. 71.
 62

the number of registered voters therein. We settled this very same question
in Herrera v. COMELEC88[44] when we interpreted a provision in R.A. No.
7166 and COMELEC Resolution No. 2313 that applied to the Province of
Guimaras. We categorically ruled that the basis for districting is the number
of inhabitants of the Province of Guimaras by municipality based on the
official 1995 Census of Population as certified to by Tomas P. Africa,
Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual
population of Cagayan de Oro City. However, we take judicial notice of the
August 2007 census of the National Statistics Office which shows that
barangays comprising Cagayan de Oro’s first district have a total population
of 254,644, while the second district has 299,322 residents. Undeniably,
these figures show a disparity in the population sizes of the districts. 89[45] The
Constitution, however, does not require mathematical exactitude or rigid
equality as a standard in gauging equality of representation. 90[46] In fact, for
cities, all it asks is that “each city with a population of at least two hundred
fifty thousand shall have one representative,” while ensuring representation
for every province regardless of the size of its population. To ensure quality
representation through commonality of interests and ease of access by the
representative to the constituents, all that the Constitution requires is that
every legislative district should comprise, as far as practicable, contiguous,
compact, and adjacent territory. Thus, the Constitution leaves the local
government units as they are found and does not require their division,
merger or transfer to satisfy the numerical standard it imposes. Its
requirements are satisfied despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.

The petitioner’s contention that there is a resulting inequality in the

division of Cagayan de Oro City into two districts because the barangays in
the first district are mostly rural barangays while the second district is
mostly urban, is largely unsubstantiated. But even if backed up by proper
proof, we cannot question the division on the basis of the difference in the
barangays’ levels of development or developmental focus as these are not
part of the constitutional standards for legislative apportionment or
reapportionment. What the components of the two districts of Cagayan de
Oro would be is a matter for the lawmakers to determine as a matter of
policy. In the absence of any grave abuse of discretion or violation of the
established legal parameters, this Court cannot intrude into the wisdom of
these policies.91[47]
Creation of legislative district of Malolos City,
Bulacan; not valid if the 250,000 population is
not met

VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO,

JULIO G. MORADA, and MINERVA
88 [44]
G.R. No. 131499, November 17, 1999, 318 SCRA 337.
89 [45]
Total Population by Province, City, Municipality and Barangay: as of August 1, 2007
<http://www.census.gov.ph/data/sectordata/2007/region%2010.pdf>, last accessed November 5, 2008.
90 [46]
Harlan, dissenting opinion in Baker v. Carr, 369 U. S. 186 citing Allied Stores of Ohio v. Bowers, 358 U.S. 522 and
McGowan v. Maryland, 366 U.S. 420, in which the Supreme Court ruled that the Equal Protection Clause does not
demand of legislation “finicky or exact conformity to abstract correlation xxx. The Constitution is satisfied if a
legislature responds to the practical living facts with which it deals. Through what precise points in a field of many
competing pressures a legislature might most suitably have drawn its lines is not a question for judicial re-examination.
It is enough to satisfy the Constitution that in drawing them the principle of reason has not been disregarded. And what
degree of uniformity reason demands of a statute is, of course, a function of the complexity of the needs which the
statute seeks to accommodate.”
91 [47]
Tobias v. Abalos, G.R. No. L-114783, December 8, 1994, 239 SCRA 106.
 63

ALDABA MORADA VS. COMELEC, G.R No. 188078,

January 25, 2010

CARPIO, J.:

This is an original action for Prohibition to declare

unconstitutional Republic Act No. 9591 (RA 9591), creating a
legislative district for the city of Malolos, Bulacan, for violating the
minimum population requirement for the creation of a legislative
district in a city.

Before 1 May 2009, the province of Bulacan was represented

in Congress through four legislative districts. The First Legislative
District comprised of the city of Malolos and the municipalities of
Hagonoy, Calumpit, Pulilan, Bulacan, and Paombong. On 1 May
2009, RA 9591 lapsed into law, amending Malolos’ City Charter, by
creating a separate legislative district for the city. At the time the
legislative bills for RA 9591 were filed in Congress in 2007,
namely, House Bill No. 3162 (later converted to House Bill No.
3693) and Senate Bill No. 1986, the population of Malolos City was
223,069. The population of Malolos City on 1 May 2009 is a
contested fact but there is no dispute that House Bill No. 3693
relied on an undated certification issued by a Regional Director of
the National Statistics Office (NSO) that “the projected population
of the Municipality of Malolos will be 254,030 by the year 2010
using the population growth rate of 3.78 between 1995 to 2000.

Petitioners, taxpayers, registered voters and residents of

Malolos City, filed this petition contending that RA 9591 is
unconstitutional for failing to meet the minimum population
threshold of 250,000 for a city to merit representation in Congress
as provided under Section 5(3), Article VI of the 1987 Constitution
and Section 3 of the Ordinance appended to the 1987 Constitution.

In its Comment to the petition, the Office of the Solicitor

General (OSG) contended that Congress’ use of projected
population is non-justiciable as it involves a determination on the
“wisdom of the standard adopted by the legislature to determine
compliance with [a constitutional requirement”.

HELD:

We grant the petition and declare RA 9591 unconstitutional

for being violative of Section 5(3), Article VI of the 1987
Constitution and Section 3 of the Ordinance appended to the 1987
Constitution

The 1987 Constitution requires that for a city to have a

legislative district, the city must have “a population of at least two
hundred fifty thousand.”92[5] The only issue here is whether the
City of Malolos has a population of at least 250,000, whether actual
or projected, for the purpose of creating a legislative district for the
City of Malolos in time for the 10 May 2010 elections. If not, then
RA 9591 creating a legislative district in the City of Malolos is
unconstitutional.
92 [5]
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)

Moreover, Section 3 of the Ordinance appended to the 1987 Constitution provides: “Any province that may be
created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled
in the immediately following election to at least one Member or such number of members as it may be entitled to on the
basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. xxx.” (Emphasis supplied)
 64

House Bill No. 3693 cites the undated Certification of

Regional Director Alberto N. Miranda of Region III of the
National Statistics Office (NSO) as authority that the population of
the City of Malolos “will be 254,030 by the year 2010.” The
Certification states that the population of “Malolos, Bulacan as of
May 1, 2000 is 175,291.” The Certification further states that it was
“issued upon the request of Mayor Danilo A. Domingo of the City
of Malolos in connection with the proposed creation of Malolos
City as a lone congressional district of the Province of Bulacan .

The Certification of Regional Director Miranda, which is

based on demographic projections, is without legal effect because
Regional Director Miranda has no basis and no authority to issue
the Certification. The Certification is also void on its face because
based on its own growth rate assumption, the population of Malolos
will be less than 250,000 in the year 2010. In addition, intercensal
demographic projections cannot be made for the entire year. In
any event, a city whose population has increased to 250,000 is
entitled to have a legislative district only in the “immediately
following election” after the attainment of the 250,000 population.

First, certifications on demographic projections can be

issued only if such projections are declared official by the
National Statistics Coordination Board (NSCB). Second,
certifications based on demographic projections can be issued only
by the NSO Administrator or his designated certifying officer.
Third, intercensal population projections must be as of the middle
of every year.

Section 6 of Executive Order No. 135 dated 6 November

1993 issued by President Fidel V. Ramos provides:

SECTION 6. Guidelines on the Issuance of Certification of

Population sizes Pursuant to Section 7, 386, 442, 450, 452, and 461
of the New Local Government Code.

(a) The National Statistics Office shall issue certification on data

that it has collected and processed as well as on statistics that it has
estimated.

(b) For census years, certification on population size will be

based on actual population census counts; while for the intercensal
years, the certification will be made on the basis of a set of
demographic projections or estimates declared official by the
National Statistical Coordination Board (NSCB).

(c) Certification of population census counts will be made as of

the census reference date, such as May 1, 1990, while those of
intercensal population estimates will be as of middle of every
year.

(d) Certification of population size based on projections may

specify the range within which the true count is deemed likely to
fall. The range will correspond to the official low and high
population projections.

(e) The smallest geographic area for which a certification on

population size may be issued will be the barangay for census
population counts, and the city or municipality for intercensal
estimates. If an LGU wants to conduct its own population census,
during off–census years, approval must be sought from the NSCB
 65

and the conduct must be under the technical supervision of NSO

from planning to data processing.

(f) Certifications of population size based on published census

results shall be issued by the Provincial Census Officers or by the
Regional Census Officers. Certifications based on projections or
estimates, however, will be issued by the NSO Administrator or
his designated certifying officer. (Emphasis supplied)

The Certification of Regional Director Miranda does not

state that the demographic projections he certified have been
declared official by the NSCB. The records of this case do not also
show that the Certification of Regional Director Miranda is based
on demographic projections declared official by the NSCB. The
Certification, which states that the population of Malolos “will be
254,030 by the year 2010,” violates the requirement that intercensal
demographic projections shall be “as of the middle of every year.”
In addition, there is no showing that Regional Director Miranda has
been designated by the NSO Administrator as a certifying officer
for demographic projections in Region III. In the absence of such
official designation, only the certification of the NSO Administrator
can be given credence by this Court.

Moreover, the Certification states that “the total population

of Malolos, Bulacan as of May 1, 2000 is 175,291.” The
Certification also states that the population growth rate of Malolos
is 3.78% per year between 1995 and 2000. Based on a growth rate
of 3.78% per year, the population of Malolos of 175,291 in 2000
will grow to only 241,550 in 2010.

Also, the 2007 Census places the population of Malolos at

223,069 as of 1 August 2007.93[9] Based on a growth rate of 3.78%,
the population of Malolos will grow to only 248,365 as of 1 August
2010. Even if the growth rate is compounded yearly, the
population of Malolos of 223,069 as of 1 August 2007 will grow
to only 249,333 as of 1 August 2010.

All these conflict with what the Certification states that the
population of Malolos “will be 254,030 by the year 2010.” Based
on the Certification’s own growth rate assumption, the population
of Malolos will be less than 250,000 before the 10 May 2010
elections. Incidentally, the NSO has no published population
projections for individual municipalities or cities but only for entire
regions and provinces.

A city that has attained a population of 250,000 is entitled to

a legislative district only in the “immediately following election.”
In short, a city must first attain the 250,000 population, and
thereafter, in the immediately following election, such city shall
have a district representative. There is no showing in the present
case that the City of Malolos has attained or will attain a
population of 250,000, whether actual or projected, before the 10
May 2010 elections.

Clearly, there is no official record that the population of

the City of Malolos will be at least 250,000, actual or projected,
prior to the 10 May 2010 elections, the immediately following
election after the supposed attainment of such population. Thus, the
City of Malolos is not qualified to have a legislative district of its
own under Section 5(3), Article VI of the 1987 Constitution and
Section 3 of the Ordinance appended to the 1987 Constitution.

93[9]
Annex “F” of Petition, which is a copy of the 2007 Census from the National Statistics Office.
 66

WHEREFORE, we GRANT the petition. We DECLARE

Republic Act No. 9591 UNCONSTITUTIONAL for being
violative of Section 5(3), Article VI of the 1987 Constitution and
Section 3 of the Ordinance appended to the 1987 Constitution.

Creation of a legislative district in

Camarines Sur with less than 250,000
population, valid

SEN. BENIGNO AQUINO III & MAYOR JESSE ROBREDO

VS. COMELEC, G.R. No. 189793, April 7, 2010

PEREZ, J.:

In this original action, petitioners Senator Benigno Simeon

C. Aquino III and Mayor Jesse Robredo, as public officers,
taxpayers and citizens, seek the nullification as unconstitutional of
Republic Act No. 9716, entitled “An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts
in the Province of Camarines Sur and Thereby Creating a New
Legislative District From Such Reapportionment.” Petitioners
consequently pray that the respondent Commission on Elections be
restrained from making any issuances and from taking any steps
relative to the implementation of Republic Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264,
and was signed into law by President Gloria Macapagal Arroyo on
12 October 2009. It took effect on 31 October 2009, or fifteen (15)
days following its publication in the Manila Standard, a newspaper
of general circulation. In substance, the said law created an
additional legislative district for the Province of Camarines Sur by
reconfiguring the existing first and second legislative districts of the
province.

Prior to Republic Act No. 9716, the Province of Camarines

Sur was estimated to have a population of 1,693,821, distributed
among four (4) legislative districts in this wise:

District Municipalities/Cities Population

Del Gallego Libmanan

Ragay Minalabac

1st District Lupi Pamplona 417,304

Sipocot Pasacao

Cabusao San Fernando

Gainza Canaman

2nd District Milaor Camaligan 474,899

Naga Magarao

Pili Bombon

Calabanga
 67

Ocampo

Caramoan Sangay

Garchitorena San Jose

3rd District Goa Tigaon 372,548

Lagonoy Tinamba

Presentacion Siruma

Iriga Buhi

4th District Baao Bula

Balatan Nabua 429,070

Bato

Following the enactment of Republic Act No. 9716, the first

and second districts of Camarines Sur were reconfigured in order to
create an additional legislative district for the province. Hence, the
first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district
municipalities of Milaor and Gainza to form a new second
legislative district. The following table illustrates the reapportionment
made by Republic Act No. 9716:

District Municipalities/Cities Population

Del Gallego

Ragay

1st District Lupi 176,383

Sipocot

Cabusao

Libmanan San Fernando

2nd District Minalabac Gainza 276,777

Pamplona Milaor

Pasacao
 68

Naga Camaligan

Pili Magarao

3rd District Ocampo Bombon 439,043

(formerly 2nd
District) Canaman Calabanga

Caramoan Sangay

Garchitorena San Jose

4th District Goa Tigaon 372,548

(formerly 3rd
District) Lagonoy Tinamba

Presentacion Siruma

Iriga Buhi

5th District Baao Bula

(formerly 4th
District) Balatan Nabua 429,070

Bato

Petitioner Aquino III was one of two senators who voted

against the approval of the Bill by the Senate. His co-petitioner,
Robredo, is the Mayor of Naga City, which was a part of the former
second district from which the municipalities of Gainza and Milaor
were taken for inclusion in the new second district. No other local
executive joined the two; neither did the representatives of the
former third and fourth districts of the province.

Petitioners contend that the reapportionment introduced by

Republic Act No. 9716, runs afoul of the explicit constitutional
standard that requires a minimum population of two hundred fifty
thousand (250,000) for the creation of a legislative district. The
petitioners claim that the reconfiguration by Republic Act No. 9716
of the first and second districts of Camarines Sur is
unconstitutional, because the proposed first district will end up with
a population of less than 250,000 or only 176,383.

Petitioners rely on Section 5(3), Article VI of the 1987

Constitution as basis for the cited 250,000 minimum population
standard. The provision reads:

Article VI

Section 5. (1) x x x x
 69

(3) Each legislative district shall comprise, as far as practicable,

contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.

The petitioners posit that the 250,000 figure appearing in the

above-cited provision is the minimum population requirement for
the creation of a legislative district. The petitioners theorize that,
save in the case of a newly created province, each legislative district
created by Congress must be supported by a minimum population
of at least 250,000 in order to be valid. Under this view, existing
legislative districts may be reapportioned and severed to form new
districts, provided each resulting district will represent a population
of at least 250,000. On the other hand, if the reapportionment
would result in the creation of a legislative seat representing a
populace of less than 250,000 inhabitants, the reapportionment must
be stricken down as invalid for non-compliance with the minimum
population requirement.

In support of their theory, the petitioners point to what they

claim is the intent of the framers of the 1987 Constitution to adopt a
population minimum of 250,000 in the creation of additional
legislative seats. The petitioners argue that when the Constitutional
Commission fixed the original number of district seats in the House
of Representatives to two hundred (200), they took into account the
projected national population of fifty five million (55,000,000) for
the year 1986. According to the petitioners, 55 million people
represented by 200 district representatives translates to roughly
250,000 people for every one (1) representative. Thus, the 250,000
population requirement found in Section 5(3), Article VI of the
1987 Constitution is actually based on the population constant used
by the Constitutional Commission in distributing the initial 200
legislative seats.

By way of summary, the petitioners claim that:

1. Republic Act 9716 is unconstitutional because the newly

apportioned first district of Camarines Sur failed to meet the
population requirement for the creation of the legislative district as
explicitly provided in Article VI, Section 5, Paragraphs (1) and (3)
of the Constitution and Section 3 of the Ordinance appended
thereto; and

2. Republic Act 9716 violates the principle of proportional

representation as provided in Article VI, Section 5 paragraphs (1),
(3) and (4) of the Constitution.

The provision subject of this case states:

Article VI

Section 5. (1) The House of Representatives shall be

composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities and the
Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional
and sectoral parties or organizations.

(2) x x x x
 70

(3) Each legislative district shall comprise, as far as

practicable, contiguous, compact, and adjacent territory. Each city
with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative.

(4) Within three years following the return of every census,

the Congress shall make a reapportionment of legislative districts
based on the standards provided in this section.

On the other hand, the respondents, through the Office

of the Solicitor General, call attention to an apparent distinction
between cities and provinces drawn by Section 5(3), Article VI of
the 1987 Constitution. The respondents concede the existence of a
250,000 population condition, but argue that a plain and simple
reading of the questioned provision will show that the same has no
application with respect to the creation of legislative districts in
provinces. Rather, the 250,000 minimum population is only a
requirement for the creation of a legislative district in a city.

HELD:

On the procedural aspect, the respondents assert that by

choosing to avail themselves of the remedies of Certiorari and
Prohibition, the petitioners have committed a fatal procedural
lapse. No evidence that they will be injured by the implementation
of the law.

The Supreme Court has, on more than one occasion,

tempered the application of procedural rules, as well as relaxed the
requirement of locus standi whenever confronted with an important
issue of overreaching significance to society.

Hence, in Del Mar v. Philippine Amusement and Gaming

Corporation (PAGCOR) and Jaworski v. PAGCOR, this Court
sanctioned momentary deviation from the principle of the hierarchy
of courts, and took original cognizance of cases raising issues of
paramount public importance. The Jaworski case ratiocinates:

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)

Anent the locus standi requirement, this Court has already

uniformly ruled in Kilosbayan v. Guingona, Tatad v. Executive
Secretary, Chavez v. Public Estates Authority and Bagong
Alyansang Makabayan v. Zamora, just to name a few, that absence
of direct injury on the part of the party seeking judicial review may
be excused when the latter is able to craft an issue of transcendental
importance. In Lim v. Executive Secretary, this Court held that in
cases of transcendental importance, the cases must be settled
promptly and definitely, and so, the standing requirements may be
relaxed. This liberal stance has been echoed in the more recent
decision on Chavez v. Gonzales.
 71

We go directly to the determination of whether or not a

population of 250,000 is an indispensable constitutional
requirement for the creation of a new legislative district in a
province.

There is no specific provision in the Constitution that fixes a

250,000 minimum population that must compose a legislative
district.

As already mentioned, the petitioners rely on the second

sentence of Section 5(3), Article VI of the 1987 Constitution,
coupled with what they perceive to be the intent of the framers of
the Constitution to adopt a minimum population of 250,000 for each
legislative district.

The second sentence of Section 5(3), Article VI of the

Constitution, succinctly provides: “Each city with a population of
at least two hundred fifty thousand, or each province, shall have at
least one representative.”

The provision draws a plain and clear distinction between the

entitlement of a city to a district on one hand, and the entitlement of
a province to a district on the other. For while a province is entitled
to at least a representative, with nothing mentioned about
population, a city must first meet a population minimum of 250,000
in order to be similarly entitled.

The use by the subject provision of a comma to separate the

phrase “each city with a population of at least two hundred fifty
thousand” from the phrase “or each province” point to no other
conclusion than that the 250,000 minimum population is only
required for a city, but not for a province.

Plainly read, Section 5(3) of the Constitution requires a

250,000 minimum population only for a city to be entitled to a
representative, but not so for a province.

The 250,000 minimum population requirement for legislative

districts in cities was, in turn, the subject of interpretation by this
Court in Mariano, Jr. v. COMELEC.

In Mariano, the issue presented was the constitutionality of

Republic Act No. 7854, which was the law that converted the
Municipality of Makati into a Highly Urbanized City. As it
happened, Republic Act No. 7854 created an additional legislative
district for Makati, which at that time was a lone district. The
petitioners in that case argued that the creation of an additional
district would violate Section 5(3), Article VI of the Constitution,
because the resulting districts would be supported by a population
of less than 250,000, considering that Makati had a total population
of only 450,000. The Supreme Court sustained the constitutionality
of the law and the validity of the newly created district, explaining
the operation of the Constitutional phrase “each city with a
population of at least two hundred fifty thousand,” to wit:

Petitioners cannot insist that the addition of another

legislative district in Makati is not in accord with section 5(3),
Article VI of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty
thousand (450,000). Said section provides, inter alia, that a city
with a population of at least two hundred fifty thousand (250,000)
shall have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district may still
 72

be increased since it has met the minimum population

requirement of two hundred fifty thousand (250,000). In fact,
Section 3 of the Ordinance appended to the Constitution
provides that a city whose population has increased to more
than two hundred fifty thousand (250,000) shall be entitled to at
least one congressional representative. (Emphasis supplied)

The Mariano case limited the application of the 250,000

minimum population requirement for cities only to its initial
legislative district. In other words, while Section 5(3), Article VI of
the Constitution requires a city to have a minimum population of
250,000 to be entitled to a representative, it does not have to
increase its population by another 250,000 to be entitled to an
additional district.

There is no reason why the Mariano case, which involves the

creation of an additional district within a city, should not be applied
to additional districts in provinces. Indeed, if an additional
legislative district created within a city is not required to represent a
population of at least 250,000 in order to be valid, neither should
such be needed for an additional district in a province, considering
moreover that a province is entitled to an initial seat by the mere
fact of its creation and regardless of its population.

Consistent with Mariano and with the framer deliberations

on district apportionment, we stated in Bagabuyo v. COMELEC
that

x x x Undeniably, these figures show a disparity in the population

sizes of the districts. The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in
gauging equality of representation. x x x. To ensure quality
representation through commonality of interests and ease of access
by the representative to the constituents, all that the Constitution
requires is that every legislative district should comprise, as far as
practicable, contiguous, compact and adjacent territory. (Emphasis
supplied).

WHEREFORE, the petition is hereby DISMISSED.

Republic Act No. 9716 entitled “An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts
in the Province of Camarines Sur and Thereby Creating a New
Legislative District From Such Reapportionment” is a VALID
LAW.

DISSENTING OPINION

CARPIO, J.:

The majority opinion wreaks havoc on the bedrock principle

of our “democratic and republican State” that all votes are equal.
Instead, the majority opinion introduces the Orwellian concept that
some votes are more equal than others. The majority opinion
allows, for the first time under the 1987 Constitution, voters in a
legislative district created by Congress to send one representative to
Congress even if the district has a population of only 176,383. In
sharp contrast, all other legislative districts created by Congress
send one representative each because they all meet the minimum
population requirement of 250,000.
 73

The assailed Republic Act No. 9716 (RA 9716) is

unconstitutional for being utterly repugnant to the clear and precise
“standards” prescribed in Section 5, Article VI of the 1987
Constitution for the creation of legislative districts. Section 5(4) of
Article VI mandates that “Congress shall make a
reapportionment of legislative districts based on the standards”
fixed in Section 5. These constitutional standards, as far as
population is concerned, are: (1) proportional representation; (2)
minimum population of 250,000 per legislative district; (3)
progressive ratio in the increase of legislative districts as the
population base increases; and (4) uniformity in apportionment
of legislative districts “in provinces, cities, and the Metropolitan
Manila area.” The assailed RA 9716 grossly violates these
constitutional standards.

There was never any debate in the design of our government

that the members of the House of Representatives, just like the
members of the Senate, represent people – not provinces, cities,
or any other political unit. The only difference is that the members
of the Senate represent the people at large while the members of the
House represent the people in legislative districts. Thus,
population – or the number of inhabitants in a district – is the
essential measure of representation in the House of
Representatives. Section 5(1), Article VI of the 1987 Constitution,
just like in the previous Constitutions, could not be any clearer:

The House of Representatives shall be composed of x x x

members, x x x, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x x
x. (Emphasis supplied)

Section 5(1), Article VI of the 1987 Constitution is even

more precise by providing that the Members of the House “shall be
elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a
uniform and progressive ratio x x x.” The phrase “as nearly as
may be according to the number of their respective inhabitants” in
the 1935 Constitution has been changed in the 1987 Constitution to
the more precise “in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x
x x.” The addition of the phrase “on the basis of a uniform and
progressive ratio” was meant to stress that the rule on proportional
representation shall apply uniformly in the apportionment of every
legislative district.

The phrase “in accordance with the number of their

respective inhabitants,” which precedes the phrase “provinces,
cities and the Metropolitan Manila area,” means that legislative
districts in provinces, cities and the Metropolitan Manila area shall
be apportioned according to proportional representation or equal
representation for equal numbers of people. Thus, there shall be
one legislative district for every given number of people, whether
inhabiting in provinces, cities or the Metropolitan Manila area.

The phrase “on the basis of a uniform x x x ratio” means

that the ratio of one legislative district for every given number of
people shall be applied uniformly in all apportionments, whether in
provinces, cities or the Metropolitan Manila area. Section 5(3) of
Article VI mandates that “[e]ach city with a population of at least
 74

two hundred fifty thousand x x x shall have at least one

representative.” Consequently, a population of 250,000 serves as
the default minimum population applicable to every legislative
district following the rule on uniformity in the apportionment of
legislative districts, whether in provinces, cities or in the
Metropolitan Manila area.

The phrase “progressive ratio” means that the number of

legislative districts shall increase as the number of the population
increases, whether in provinces, cities or the Metropolitan Manila
area. Thus, a province shall have one legislative district if it has a
population of 250,000, and two legislative districts if it has
500,000. This insures that proportional representation is maintained
if there are increases in the population of a province, city, or the
Metropolitan Manila area. This is what is meant by a “progressive
ratio” in the apportionment of legislative districts, a ratio that must
also be uniformly applied.

The Constitution itself provides the “standards” against

which reapportionment laws like RA 9716 will be tested, following
its command that “Congress shall make a reapportionment of
legislative districts based on the standards provided in this
section,” referring to Section 5, Article VI. These standards
relate to first, population, and second, territory. Section 5
admits of no other standards.

On population, the standards of the 1987 Constitution have

four elements. First is the rule on proportional representation,
which is the universal standard in direct representation in
legislatures. Second is the rule on a minimum population of
250,000 per legislative district, which was not present in our
previous Constitutions. Third is the rule on progressive ratio, which
means that the number of legislative districts shall increase as the
number of the population increases in accordance with the rule on
proportional representation. Fourth is the rule on uniformity,
which requires that the first three rules shall apply uniformly in
all apportionments in provinces, cities and the Metropolitan
Manila area.

The Constitution and the Ordinance appended to the 1987

Constitution fixes the minimum population of a legislative district
at 250,000. Although textually relating to cities, this minimum
population requirement applies equally to legislative districts
apportioned in provinces and the Metropolitan Manila area because
of the constitutional command that “legislative districts [shall be]
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio.”
To reiterate, the Constitution commands that this rule on
uniformity shall apply to legislative districts in “provinces,
cities, and the Metropolitan Manila area.” Otherwise, districts
apportioned in provinces, if freed from the minimum population
requirement, will have constituencies two, four, ten times lower
than in districts apportioned in cities, violating the constitutional
command that apportionment shall be based on a uniform ratio in
“provinces, cities, and the Metropolitan Manila area.”

In short, the constitutional “standards” in the

apportionment of legislative districts under Section 5 of Article
VI, as far as population is concerned, are: (1) proportional
representation; (2) a minimum “population of at least two
hundred fifty thousand” per legislative district; (3) progressive
ratio in the increase of legislative districts as the population
base increases; and (4) uniformity in the apportionment of
 75

legislative districts in “provinces, cities, and the Metropolitan

Manila area.”

RA 9716 grossly malapportions Camarines Sur’s proposed

five legislative districts by flouting the standards of proportional
representation among legislative districts and the minimum
population per legislative district.

Based on the 2007 census, the proposed First District

under RA 9716 will have a population of only 176,383, which is
29% below the constitutional minimum population of 250,000
per legislative district. In contrast, the remaining four proposed
districts have populations way above the minimum with the highest
at 439,043 (proposed Third District), lowest at 276,777 (proposed
Second District) and an average of 379,359. Indeed, the disparity is
so high that three of the proposed districts (Third, Fourth, and Fifth
Districts) have populations more than double that of the proposed
First District. This results in wide variances among the districts’
populations. Still using the 2007 census, the ideal per district
population for Camarines Sur is 338,764. The populations of the
proposed districts swing from this ideal by a high of positive
29.6% (Third District) to a low of negative 47.9% (First
District). This means that the smallest proposed district (First
District) is underpopulated by nearly 50% of the ideal and the
biggest proposed district (Third District) is overpopulated by
nearly 30% of the ideal.

The resulting vote undervaluation (for voters in the

disfavored districts) and vote overvaluation (for voters in the First
District) fails even the most liberal application of the constitutional
standards. Votes in the proposed First District are overvalued by
more than 200% compared to votes from the Third, Fourth, and
Fifth Districts and by more than 60% compared to votes in the
Second District. Conversely, votes from the Third, Fourth, and Fifth
Districts are undervalued by more than 200% compared to votes in
the First District while those in the Second District suffer more than
60% undervaluation. Proportional representation in redistricting
does not mean exact numbers of population, to the last digit, for
every legislative district. However, under the assailed RA 9716,
the variances swing from negative 47.9% to positive 29.6%. Under
any redistricting yardstick, such variances are grossly anomalous
and destructive of the concept of proportional representation. In
the United States, the Supreme Court there ruled that a variance of
even less than 1% is unconstitutional in the absence of proof of a
good faith effort to achieve a mathematically exact apportionment.

Equally important, RA 9716 violates the minimum

population requirement of 250,000 in creating the proposed First
District, which will have a population of only 176,383. The
minimum population of 250,000 per legislative district admits of no
variance and must be complied with to the last digit. The
Constitution mandates a population of “at least two hundred fifty
thousand” for a legislative district in a city, and under the principle
of “uniform and progressive ratio,” for every legislative district in
provinces and in the Metropolitan Manila area.

The directive in Section 5(3) of Article VI that “each

province, shall have at least one representative” means only that
when a province is created, a legislative district must also be
created with it. Can this district have a population below 250,000?
To answer in the affirmative is to ignore the constitutional mandate
that districts in provinces be apportioned “in accordance with the
number of their respective inhabitants, and on the basis of a uniform
and progressive ratio.” That the Constitution never meant to
 76

exclude provinces from the requirement of proportional

representation is evident in the opening provision of Section 5(1),
which states:

The House of Representatives shall be composed of x x x

members, x x x, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x x
x.” (Boldfacing and underscoring supplied)

In short, the Constitution clearly mandates that the creation

of legislative districts in provinces, cities and the Metropolitan
Manila area must comply with proportional representation, on the
basis of a uniform and progressive ratio.

In contrast, Congress enacted RA 9716 in the exercise of its

legislative powers under the 1987 Constitution and subject to the
reapportionment standards in Section 5, Article VI of the
Constitution. Congress is strictly bound by the reapportionment
standards in Section 5, unlike the Constitutional Commission which
could create one-time exceptions subject to ratification by the
sovereign people. Until it enacted RA 9716, Congress never
deviated from the minimum population requirement of 250,000 in
creating a legislative district. Thus, in Republic Act No. 7854 (RA
7854) which doubled the legislative districts in Makati City, the
Court in Mariano v. COMELEC took note of the certification by the
National Statistics Office that at the time of the enactment of RA
7854, the population of Makati City was 508,174, entitling it to
two representatives.

Similarly, in Republic Act No. 9371 (RA 9371) which also

doubled the legislative districts in Cagayan de Oro City, the two
districts created complied with the minimum population of
250,000 (254,644 and 299,322, respectively), as the Court noted in
Bagabuyo v. COMELEC. Contrary to the assertion of the majority
opinion, neither Mariano v. COMELEC nor Bagabuyo v.
COMELEC supports the claim that Congress can create a legislative
district with a population of less than 250,000. On the contrary,
these cases confirm that every legislative district must have a
minimum population of 250,000. Only very recently, this Court in
Aldaba v. COMELEC struck down a law creating a legislative
district in the City of Malolos, which has a population just short of
the 250,000 minimum requirement.

Whether the group of gays, lesbians, etc., are

considered marginalized groups and may be
allowed as a party list group.

ANG LADLAD LGBT PARTY VS. COMELEC, G.R. No. 190582,

April 8, 2010

DEL CASTILLO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of

Court, with an application for a writ of preliminary mandatory injunction,
filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions
of the Commission on Elections (COMELEC) dated November 11, 2009
(the First Assailed Resolution) and December 16, 2009 (the Second
Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to
 77

accredit Ang Ladlad as a party-list organization under Republic Act (RA)

No. 7941, otherwise known as the Party-List System Act.

Ang Ladlad is an organization composed of men and women who

identify themselves as lesbians, gays, bisexuals, or trans-gendered
individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad again
filed a Petition for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT

community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad
complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections . Ang
Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of
governance.

On November 11, 2009, after admitting the petitioner’s evidence,

the COMELEC (Second Division) dismissed the Petition on moral
grounds, stating that:

x x x This Petition is dismissible on moral grounds.

Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and gender
identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and

sexual attraction to, and intimate and sexual relations with, individuals of
a different gender, of the same gender, or more than one gender.”

This definition of the LGBT sector makes it crystal clear that

petitioner tolerates immorality which offends religious beliefs.

The ANG LADLAD apparently advocates sexual immorality

as indicated in the Petition’s par. 6F: ‘Consensual partnerships or
relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit,

license, relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code

which defines nuisance as ‘Any act, omission, establishment, business,
condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The

contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary
to law, morals, good customs, public order or public policy. Art 1409 of
 78

the Civil Code provides that ‘Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy’ are
inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community,

the Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and

exhibitions, and indecent shows. — The penalty of prision mayor or a
fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines

openly contrary to public morals;

When Ang Ladlad sought reconsideration to the COMELEC EN

BANC, three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento,
and Armando Velasco), while three commissioners voted to deny Ang
Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his Separate
Opinion, upheld the First Assailed Resolution, stating that:

Ladlad is applying for accreditation as a sectoral party in the

party-list system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the

purpose of the party-list system of electing congressional representatives
is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the

ability of an organization to represent its constituencies, then all
representative organizations would have found themselves into the party-
list race. But that is not the intention of the framers of the law. The party-
list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list
system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nation’s – only that their
interests have not been brought to the attention of the nation because of
their under representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation
under the party-list system will remain just that.

Thus, even if society’s understanding, tolerance, and

acceptance of LGBT’s is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain either
male or female protected by the same Bill of Rights that applies to all
citizens alike.

The COMELEC likewise used the Holy Bible and the Koran in
denying Ladlad’s application.

On January 4, 2010, Ang Ladlad filed this Petition, praying that

the Court annul the Assailed Resolutions and direct the COMELEC to
grant Ang Ladlad’s application for accreditation. Ang Ladlad also
 79

sought the issuance ex parte of a preliminary mandatory injunction

against the COMELEC, which had previously announced that it would
begin printing the final ballots for the May 2010 elections by January 25,
2010.

On January 6, 2010, the Office of the Solicitor General (OSG

was ordered to file its Comment on behalf of COMELEC not later than
12:00 noon of January 11, 2010. Instead of filing a Comment, however,
the OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment. Somewhat surprisingly, the OSG later
filed a Comment in support of petitioner’s application. Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment. The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.

In the meantime, due to the urgency of the petition, a temporary

restraining order was issued on January 12, 2010, effective immediately
and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed
Resolutions.

Also, on January 13, 2010, the Commission on Human Rights

(CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
attaching thereto its Comment-in-Intervention. The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards
and principles of the Constitution, the Universal Declaration of Human
Rights (UDHR), and the International Covenant on Civil and Political
Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to
intervene.

HELD:

We grant the petition.

Compliance with the Requirements of the Constitution and Republic

Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration

on the ground that the LGBT sector is neither enumerated in the
Constitution and RA 7941, nor is it associated with or related to any of
the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong

Bayani stands for the proposition that only those sectors specifically
enumerated in the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission
on Elections, “the enumeration of marginalized and under-
represented sectors is not exclusive”. The crucial element is not
whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA
7941.

A cursory perusal of Ang Ladlad’s initial petition shows that it

never claimed to exist in each province of the Philippines. Rather,
petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in its
electronic discussion group. Ang Ladlad also represented itself to be “a
national LGBT umbrella organization with affiliates around the
Philippines composed of the following LGBT networks:”
 80

 Abra Gay Association

 Aklan Butterfly Brigade (ABB) – Aklan
 Albay Gay Association
 Arts Center of Cabanatuan City – Nueva Ecija
 Boys Legion – Metro Manila
 Cagayan de Oro People Like Us (CDO PLUS)
 Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
 Cebu Pride – Cebu City
 Circle of Friends
 Dipolog Gay Association – Zamboanga del Norte
 Gay, Bisexual, & Transgender Youth Association (GABAY)
 Gay and Lesbian Activists Network for Gender Equality (GALANG) –
Metro Manila
 Gay Men’s Support Group (GMSG) – Metro Manila
 Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
 Iloilo City Gay Association – Iloilo City
 Kabulig Writer’s Group – Camarines Sur
 Lesbian Advocates Philippines, Inc. (LEAP)
 LUMINA – Baguio City
 Marikina Gay Association – Metro Manila
 Metropolitan Community Church (MCC) – Metro Manila
 Naga City Gay Association – Naga City
 ONE BACARDI
 Order of St. Aelred (OSAe) – Metro Manila
 PUP LAKAN
 RADAR PRIDEWEAR
 Rainbow Rights Project (R-Rights), Inc. – Metro Manila
 San Jose del Monte Gay Association – Bulacan
 Sining Kayumanggi Royal Family – Rizal
 Society of Transexual Women of the Philippines (STRAP) – Metro
Manila
 Soul Jive – Antipolo, Rizal
 The Link – Davao City
 Tayabas Gay Association – Quezon
 Women’s Bisexual Network – Metro Manila
 Zamboanga Gay Association – Zamboanga City

Against this backdrop, we find that Ang Ladlad has sufficiently

demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELEC’s moral objection and the
belated allegation of non-existence, nowhere in the records has the
respondent ever found/ruled that Ang Ladlad is not qualified to register
as a party-list organization under any of the requisites under RA 7941 or
the guidelines in Ang Bagong Bayani. The difference, COMELEC
claims, lies in Ang Ladlad’s morality, or lack thereof.

Our Constitution provides in Article III, Section 5 that “[n]o

law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious
matters.” Clearly, “governmental reliance on religious justification
is inconsistent with this policy of neutrality.” We thus find that it was
grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the

Assailed Resolutions should depend, instead, on whether the COMELEC
is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must act
for secular purposes and in ways that have primarily secular effects. As
we held in Estrada v. Escritor:
 81

x x x The morality referred to in the law is public and

necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. "Religious teachings as expressed in public debate may influence
the civil public order but public moral disputes may be resolved only on
grounds articulable in secular terms." Otherwise, if government relies
upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some
might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also
tacitly disapprove contrary religious or non-religious views that would
not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens.

We are not blind to the fact that, through the years, homosexual
conduct, and perhaps homosexuals themselves, have borne the brunt of
societal disapproval. It is not difficult to imagine the reasons behind this
censure – religious beliefs, convictions about the preservation of
marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct.
Evidently, therefore, these “generally accepted public morals” have not
been convincingly transplanted into the realm of law.

The Assailed Resolutions have not identified any specific overt

immoral act performed by Ang Ladlad. Even the OSG agrees that “there
should have been a finding by the COMELEC that the group’s members
have committed or are committing immoral acts.” The OSG argues:

x x x A person may be sexually attracted to a person of the

same gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the “straights” and the gays.”
Certainly this is not the intendment of the law.

Respondent has failed to explain what societal ills are sought to be

prevented, or why special protection is required for the youth. Neither
has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably
damage the moral fabric of society. We, of course, do not suggest that
the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot countenance advocates
who, undoubtedly with the loftiest of intentions, situate morality on one
end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is
robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations

of our penal and civil laws flimsy, at best; disingenuous, at worst. Article
694 of the Civil Code defines a nuisance as “any act, omission,
establishment, condition of property, or anything else which shocks,
defies, or disregards decency or morality,” the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil
action, or abatement without judicial proceedings. A violation of Article
201 of the Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly needs to be
 82

emphasized that mere allegation of violation of laws is not proof, and a

mere blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability or
culpability.

As such, we hold that moral disapproval, without more, is not a

sufficient governmental interest to justify exclusion of homosexuals from
participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement of
dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest. Respondent’s blanket justifications give rise
to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible
act. It is this selective targeting that implicates our equal protection
clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our

Constitution, which provides “nor shall any person be denied equal
protection of the laws,” courts have never interpreted the provision as an
absolute prohibition on classification. “Equality,” said Aristotle,
“consists in the same treatment of similar persons.” The equal protection
clause guarantees that no person or class of persons shall be deprived of
the same protection of laws which is enjoyed by other persons or other
classes in the same place and in like circumstances.

Recent jurisprudence has affirmed that if a law neither

burdens a fundamental right nor targets a suspect class, we will
uphold the classification as long as it bears a rational relationship to
some legitimate government end. In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, we declared that
“[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with
a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution.”

The COMELEC posits that the majority of the Philippine

population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that
public opinion is as the COMELEC describes it, the asserted state
interest here – that is, moral disapproval of an unpopular minority –
is not a legitimate state interest that is sufficient to satisfy rational
basis review under the equal protection clause. The COMELEC’s
differentiation, and its unsubstantiated claim that Ang Ladlad
cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause. We are not prepared to
single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence
to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized
 83

under the same basis as all other groups similarly situated, and that
the COMELEC made “an unwarranted and impermissible
classification not justified by the circumstances of the case.”

Freedom of Expression and Association

Freedom of expression constitutes one of the essential foundations

of a democratic society, and this freedom applies not only to those that
are favorably received but also to those that offend, shock, or disturb.
Any restriction imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state interest, it is not for
the COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere with
speech for no better reason than promoting an approved message or
discouraging a disfavored one.

This position gains even more force if one considers that

homosexual conduct is not illegal in this country. It follows that both
expressions concerning one’s homosexuality and the activity of forming
a political association that supports LGBT individuals are protected as
well.

Other jurisdictions have gone so far as to categorically rule

that even overwhelming public perception that homosexual conduct
violates public morality does not justify criminalizing same-sex
conduct. European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in
foreign and international texts. To the extent that there is much to
learn from other jurisdictions that have reflected on the issues we
face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts,
may nevertheless have persuasive influence on the Court’s
analysis.

In the area of freedom of expression, for instance, United

States courts have ruled that existing free speech doctrines protect
gay and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by “something more than
a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.”

With respect to freedom of association for the advancement

of ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a change in
the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with
democratic principles. The ECHR has emphasized that political
ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity
of expression through the exercise of the right of association, even
if such ideas may seem shocking or unacceptable to the authorities
or the majority of the population. A political group should not be
hindered solely because it seeks to publicly debate controversial
political issues in order to find solutions capable of satisfying
everyone concerned. Only if a political party incites violence or
puts forward policies that are incompatible with democracy does it
fall outside the protection of the freedom of association guarantee.
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They
are entitled to hold and express that view. On the other hand,
LGBTs and their supporters, in all likelihood, believe with equal
 84

fervor that relationships between individuals of the same sex are

morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court
is concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration
the values of other members of the community.

Of course, none of this suggests the impending arrival of a

golden age for gay rights litigants. It well may be that this Decision will
only serve to highlight the discrepancy between the rigid constitutional
analysis of this Court and the more complex moral sentiments of
Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we
neither attempt nor expect to affect individual perceptions of
homosexuality through this Decision.

WHEREFORE, the Petition is hereby GRANTED.

Formula in determining the party-list

representatives Is the 20% ceiling mandatory?
(Veterans vs. COMELEC Formula abandoned)

BARANGAY ASSOCIATION FOR NATIONAL

ADVANCEMENT AND TRANSPARENCY (BANAT)
- versus -COMMISSION ON ELECTIONS ,
G.R. No. 179271, May 2009

CARPIO, J.:
The Case

Petitioner in G.R. No. 179271 — Barangay Association for National

Advancement and Transparency (BANAT) — in a petition for certiorari and
mandamus,94[1] assails the Resolution95[2] promulgated on 3 August 2007 by
the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The
COMELEC’s resolution in NBC No. 07-041 (PL) approved the
recommendation of Atty. Alioden D. Dalaig, Head of the National Board of
Canvassers (NBC) Legal Group, to deny the petition of BANAT for being
moot. BANAT filed before the COMELEC En Banc, acting as NBC, a
Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and
Science Professionals (ABS), Aangat Tayo (AT), and Coalition of
Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy

for Teacher Empowerment Through Action, Cooperation and Harmony
Towards Educational Reforms (A Teacher) — in a petition for certiorari with
mandamus and prohibition,96[3] assails NBC Resolution No. 07-60 97[4]
promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation
of parties, organizations and coalitions that obtained at least two percent of
the total votes cast under the Party-List System. The COMELEC announced
94
95
96
97
 85

that, upon completion of the canvass of the party-list results, it would

determine the total number of seats of each winning party, organization, or
coalition in accordance with Veterans Federation Party v. COMELEC 98[5]
(Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of

the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos.
179271 and 179295.

The Facts

The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93
parties under the Party-List System.99[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full
Number of Party-List Representatives Provided by the Constitution,
docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its
petition because “[t]he Chairman and the Members of the [COMELEC]
have recently been quoted in the national papers that the [COMELEC] is
duty bound to and shall implement the Veterans ruling, that is, would apply
the Panganiban formula in allocating party-list seats.” 100[7] There were no
intervenors in BANAT’s petition before the NBC. BANAT filed a
memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated

NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen
(13) parties as winners in the party-list elections, namely: Buhay Hayaan
Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against Corruption
(CIBAC), Gabriela’s Women Party (Gabriela), Association of Philippine
Electric Cooperatives (APEC), A Teacher, Akbayan! Citizen’s Action Party
(AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco
Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns
(ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety
below:

WHEREAS, the Commission on Elections sitting en banc

as National Board of Canvassers, thru its Sub-Committee for
Party-List, as of 03 July 2007, had officially canvassed, in open
and public proceedings, a total of fifteen million two hundred
eighty three thousand six hundred fifty-nine (15,283,659)
votes under the Party-List System of Representation, in
connection with the National and Local Elections conducted last
14 May 2007;

WHEREAS, the study conducted by the Legal and

Tabulation Groups of the National Board of Canvassers reveals
that the projected/maximum total party-list votes cannot go any
higher than sixteen million seven hundred twenty three
thousand one hundred twenty-one (16,723,121) votes given
the following statistical data:

Projected/Maximum Party-List Votes for May 2007

Elections
98
99
100
 86

i. Total party-list votes already 15,283,659

canvassed/tabulated
ii. Total party-list votes remaining
uncanvassed/ untabulated (i.e. canvass 1,337,032
deferred)
iii. Maximum party-list votes (based on
100% outcome) from areas not yet
submitted for canvass (Bogo, Cebu; Bais
City; Pantar, Lanao del Norte; and 102,430
Pagalungan, Maguindanao)
Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No.

7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions

receiving at least two percent (2%) of the
total votes cast for the party-list system
shall be entitled to one seat each:
provided, that those garnering more than
two percent (2%) of the votes shall be
entitled to additional seats in proportion to
their total number of votes: provided,
finally, that each party, organization, or
coalition shall be entitled to not more than
three (3) seats.

WHEREAS, for the 2007 Elections, based on

the above projected total of party-list votes, the
presumptive two percent (2%) threshold can be
pegged at three hundred thirty four thousand four
hundred sixty-two (334,462) votes;

WHEREAS, the Supreme Court, in Citizen’s

Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans
Federation Party versus COMELEC adopting a
formula for the additional seats of each party,
organization or coalition receving more than the
required two percent (2%) votes, stating that the
same shall be determined only after all party-list
ballots have been completely canvassed;

WHEREAS, the parties, organizations, and

coalitions that have thus far garnered at least three
hundred thirty four thousand four hundred sixty-
two (334,462) votes are as follows:

RANK PARTY/ORGANIZATION/ VOTES

COALITION RECEIVED
1 BUHAY 1,16
3,218
 87

2 BAYAN MUNA 97
2,730
3 CIBAC 76
0,260
4 GABRIELA 61
0,451
5 APEC 53
8,971
6 A TEACHER 47
6,036
7 AKBAYAN 47
0,872
8 ALAGAD 42
3,076
9 BUTIL 40
5,052
10 COOP-NATCO 39
0,029
11 BATAS 38
6,361
12 ANAK PAWIS 37
6,036
13 ARC 33
8,194
14 ABONO 33
7,046

WHEREAS, except for Bagong Alyansang

Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS), against which an URGENT PETITION
FOR CANCELLATION/REMOVAL OF
REGISTRATION AND DISQUALIFICATION OF
PARTY-LIST NOMINEE (With Prayer for the
Issuance of Restraining Order) has been filed before
the Commission, docketed as SPC No. 07-250, all
the parties, organizations and coalitions included in
the aforementioned list are therefore entitled to at
least one seat under the party-list system of
representation in the meantime.

NOW, THEREFORE, by virtue of the powers

vested in it by the Constitution, the Omnibus
Election Code, Executive Order No. 144, Republic
Act Nos. 6646, 7166, 7941, and other election laws,
the Commission on Elections, sitting en banc as the
National Board of Canvassers, hereby RESOLVES to
PARTIALLY PROCLAIM, subject to certain
conditions set forth below, the following parties,
organizations and coalitions participating under the
Party-List System:
 88

1 Buhay Hayaan Yumabong BUHAY

2 Bayan Muna BAYAN
MUNA
3 Citizens Battle Against Corruption CIBAC
4 Gabriela Women’s Party GABRIELA
5 Association of Philippine Electric APEC
Cooperatives
6 Advocacy for Teacher A TEACHER
Empowerment Through Action,
Cooperation and Harmony
Towards Educational Reforms,
Inc.
7 Akbayan! Citizen’s Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network Party COOP-
NATCCO
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO

This is without prejudice to the proclamation of

other parties, organizations, or coalitions which may
later on be established to have obtained at least two
percent (2%) of the total actual votes cast under the
Party-List System.

The total number of seats of each winning

party, organization or coalition shall be determined
pursuant to Veterans Federation Party versus
COMELEC formula upon completion of the canvass
of the party-list results.

The proclamation of Bagong Alyansang

Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS) is hereby deferred until final resolution of
SPC No. 07-250, in order not to render the
proceedings therein moot and academic.

Finally, all proclamation of the nominees of

concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance
until final resolution of their respective cases.

Let the Clerk of the Commission implement

this Resolution, furnishing a copy thereof to the
Speaker of the House of Representatives of the
Philippines.

SO ORDERED.101[8] (Emphasis in the original)

101
 89

Pursuant to NBC Resolution No. 07-60, the COMELEC,

acting as NBC, promulgated NBC Resolution No. 07-72, which
declared the additional seats allocated to the appropriate parties.
We quote from the COMELEC’s interpretation of the Veterans
formula as found in NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission

on Elections sitting en banc as the National Board of
Canvassers proclaimed thirteen (13) qualified parties,
organization[s] and coalitions based on the
presumptive two percent (2%) threshold of 334,462
votes from the projected maximum total number of
party-list votes of 16,723,121, and were thus given
one (1) guaranteed party-list seat each;

WHEREAS, per Report of the Tabulation

Group and Supervisory Committee of the National
Board of Canvassers, the projected maximum total
party-list votes, as of July 11, 2007, based on the
votes actually canvassed, votes canvassed but not
included in Report No. 29, votes received but
uncanvassed, and maximum votes expected for
Pantar, Lanao del Norte, is 16,261,369; and that the
projected maximum total votes for the thirteen (13)
qualified parties, organizations and coalition[s] are as
follows:

Party-List Projected total number of

votes
1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
10 COOP-NATCO 412,920
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151

WHEREAS, based on the above Report, Buhay

Hayaan Yumabong (Buhay) obtained the highest
number of votes among the thirteen (13) qualified
parties, organizations and coalitions, making it the
“first party” in accordance with Veterans Federation
Party versus COMELEC, reiterated in Citizen’s
Battle Against Corruption (CIBAC) versus
 90

COMELEC;

WHEREAS, qualified parties, organizations

and coalitions participating under the party-list
system of representation that have obtained one
guaranteed (1) seat may be entitled to an additional
seat or seats based on the formula prescribed by the
Supreme Court in Veterans;

WHEREAS, in determining the additional seats

for the “first party”, the correct formula as expressed
in Veterans, is:

Number of votes of first party

Proportion of votes of first
--------------------- = party
relative to total votes for
Total votes for party-list system party-list
system

wherein the proportion of votes received by the first

party (without rounding off) shall entitle it to
additional seats:

Proportion of votes Additional

received seats
by the first party
Equal to or at least 6% Two (2)
additional
seats
Equal to or greater than 4% One (1)
but less than 6% additional
seat
Less than 4% No additional
seat

WHEREAS, applying the above formula,

Buhay obtained the following percentage:

1,178,747
-------- = 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats

for the other qualified parties, organizations and
coalitions, the correct formula as expressed in
Veterans and reiterated in CIBAC is, as follows:

No. of votes of
concerned party
No. of additional
Additional seats for = ------------------- x
 91

seats allocated to
a concerned party No. of votes of
first party
first party

WHEREAS, applying the above formula, the

results are as follows:

Party List Percentage Additional

Seat
BAYAN 1.65 1
MUNA
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
ALAGAD 0.71 0
BUTIL 0.69 0
COOP- 0.69 0
NATCO
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0

NOW THEREFORE, by virtue of the powers

vested in it by the Constitution, Omnibus Election
Code, Executive Order No. 144, Republic Act Nos.
6646, 7166, 7941 and other elections laws, the
Commission on Elections en banc sitting as the
National Board of Canvassers, hereby RESOLVED,
as it hereby RESOLVES, to proclaim the following
parties, organizations or coalitions as entitled to
additional seats, to wit:

Party List Additional Seats

BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1

This is without prejudice to the proclamation of

other parties, organizations or coalitions which may
later on be established to have obtained at least two
per cent (2%) of the total votes cast under the party-
list system to entitle them to one (1) guaranteed seat,
 92

or to the appropriate percentage of votes to entitle

them to one (1) additional seat.

Finally, all proclamation of the nominees of

concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance
until final resolution of their respective cases.

Let the National Board of Canvassers

Secretariat implement this Resolution, furnishing a
copy hereof to the Speaker of the House of
Representatives of the Philippines.

SO ORDERED.102[9]

Acting on BANAT’s petition, the NBC promulgated NBC

Resolution No. 07-88 on 3 August 2007, which reads as follows:

This pertains to the Petition to Proclaim the

Full Number of Party-List Representatives Provided
by the Constitution filed by the Barangay Association
for National Advancement and Transparency
(BANAT).

Acting on the foregoing Petition of the

Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D.
Dalaig, Head, National Board of Canvassers Legal
Group submitted his comments/observations and
recommendation thereon [NBC 07-041 (PL)], which
reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for

National Advancement and Transparency
(BANAT), in its Petition to Proclaim the
Full Number of Party-List
Representatives Provided by the
Constitution prayed for the following
reliefs, to wit:

1. That the full number -- twenty

percent (20%) -- of Party-List
representatives as mandated by Section 5,
Article VI of the Constitution shall be
proclaimed.

2. Paragraph (b), Section 11 of RA

7941 which prescribes the 2% threshold
votes, should be harmonized with Section
5, Article VI of the Constitution and with
Section 12 of the same RA 7941 in that it
102
 93

should be applicable only to the first

party-list representative seats to be
allotted on the basis of their initial/first
ranking.

3. The 3-seat limit prescribed by RA

7941 shall be applied; and

4. Initially, all party-list groups shall

be given the number of seats
corresponding to every 2% of the votes
they received and the additional seats
shall be allocated in accordance with
Section 12 of RA 7941, that is, in
proportion to the percentage of votes
obtained by each party-list group in
relation to the total nationwide votes cast
in the party-list election, after deducting
the corresponding votes of those which
were allotted seats under the 2% threshold
rule. In fine, the formula/procedure
prescribed in the “ALLOCATION OF
PARTY-LIST SEATS, ANNEX “A” of
COMELEC RESOLUTION 2847 dated
25 June 1996, shall be used for [the]
purpose of determining how many seats
shall be proclaimed, which party-list
groups are entitled to representative seats
and how many of their nominees shall
seat [sic].

5. In the alternative, to declare as

unconstitutional Section 11 of Republic
Act No. 7941 and that the procedure in
allocating seats for party-list
representative prescribed by Section 12 of
RA 7941 shall be followed.

RECOMMENDATION:

The petition of BANAT is now moot and

academic.

The Commission En Banc in NBC

Resolution No. 07-60 promulgated
July 9, 2007 re “In the Matter of the
Canvass of Votes and Partial
Proclamation of the Parties, Organizations
and Coalitions Participating Under the
Party-List System During the May 14,
2007 National and Local Elections”
resolved among others that the total
number of seats of each winning party,
organization or coalition shall be
determined pursuant to the Veterans
 94

Federation Party versus COMELEC

formula upon completion of the canvass
of the party-list results.”

WHEREFORE, premises considered, the

National Board of Canvassers RESOLVED, as it
hereby RESOLVES, to approve and adopt the
recommendation of Atty. Alioden D. Dalaig, Head,
NBC Legal Group, to DENY the herein petition of
BANAT for being moot and academic.

Let the Supervisory Committee implement this

resolution.

SO ORDERED.103[10]

BANAT filed a petition for certiorari and mandamus

assailing the ruling in NBC Resolution No. 07-88. BANAT did
not file a motion for reconsideration of NBC Resolution No. 07-
88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked

the COMELEC, acting as NBC, to reconsider its decision to use
the Veterans formula as stated in its NBC Resolution No. 07-60
because the Veterans formula is violative of the Constitution and
of Republic Act No. 7941 (R.A. No. 7941). On the same day,
the COMELEC denied reconsideration during the proceedings of
the NBC.104[11]

Aside from the thirteen party-list organizations proclaimed

on 9 July 2007, the COMELEC proclaimed three other party-list
organizations as qualified parties entitled to one guaranteed seat
under the Party-List System: Agricultural Sector Alliance of the
Philippines, Inc. (AGAP),105[12] Anak Mindanao (AMIN),106[13]
and An Waray.107[14] Per the certification108[15] by COMELEC, the
following party-list organizations have been proclaimed as of 19
May 2008:

Party-List No. of
Seat(s)
1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1
1.7 Akbayan 1
103
104
105
106
107
108
 95

1.8 Alagad 1
1.9 Butil 1
1.10 Coop-Natco [sic] 1
1.11 Anak Pawis 1
1.12 ARC 1
1.13 Abono 1
1.14 AGAP 1
1.15 AMIN 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng

Adhikaing Sambayanan (BATAS), against which an Urgent
Petition for Cancellation/Removal of Registration and
Disqualification of Party-list Nominee (with Prayer for the
Issuance of Restraining Order) has been filed before the
COMELEC, was deferred pending final resolution of SPC
No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list

representatives provided in Section 5(2), Article VI
of the Constitution mandatory or is it merely a
ceiling?

2. Is the three-seat limit provided in Section 11(b)

of RA 7941 constitutional?

3. Is the two percent threshold and “qualifier”

votes prescribed by the same Section 11(b) of
RA 7941 constitutional?

4. How shall the party-list representatives be

allocated?109[16]

Bayan Muna, A Teacher, and Abono, on the other hand,

raised the following issues in their petition:

I. Respondent Commission on Elections, acting

as National Board of Canvassers, committed grave
abuse of discretion amounting to lack or excess of
jurisdiction when it promulgated NBC Resolution
No. 07-60 to implement the First-Party Rule in
the allocation of seats to qualified party-list
organizations as said rule:

A. Violates the constitutional principle of

proportional representation.

B. Violates the provisions of RA 7941

particularly:
109
 96

1. The 2-4-6 Formula used by the First

Party Rule in allocating additional
seats for the “First Party” violates the
principle of proportional representation
under RA 7941.

2. The use of two formulas in the

allocation of additional seats, one for
the “First Party” and another for the
qualifying parties, violates Section
11(b) of RA 7941.

3. The proportional relationships

under the First Party Rule are different
from those required under RA 7941;

C. Violates the “Four Inviolable Parameters”

of the Philippine party-list system as provided
for under the same case of Veterans
Federation Party, et al. v. COMELEC.

II. Presuming that the Commission on Elections

did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction when it
implemented the First-Party Rule in the allocation of
seats to qualified party-list organizations, the same
being merely in consonance with the ruling in
Veterans Federations Party, et al. v. COMELEC,
the instant Petition is a justiciable case as the issues
involved herein are constitutional in nature,
involving the correct interpretation and
implementation of RA 7941, and are of
transcendental importance to our nation.110[17]

Considering the allegations in the petitions and the

comments of the parties in these cases, we defined the following
issues in our advisory for the oral arguments set on 22 April
2008:

1. Is the twenty percent allocation for party-list

representatives in Section 5(2), Article VI of the
Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA

7941 constitutional?

3. Is the two percent threshold prescribed in

Section 11(b) of RA 7941 to qualify for one seat
constitutional?

4. How shall the party-list representative seats be

allocated?

110
 97

5. Does the Constitution prohibit the major

political parties from participating in the party-list
elections? If not, can the major political parties be
barred from participating in the party-list
elections?111[18]

The Ruling of the Court

The petitions have partial merit. We maintain that a

Philippine-style party-list election has at least four inviolable
parameters as clearly stated in Veterans. For easy reference,
these are:

First, the twenty percent allocation — the

combined number of all party-list congressmen shall
not exceed twenty percent of the total membership of
the House of Representatives, including those elected
under the party list;

Second, the two percent threshold — only those

parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are
“qualified” to have a seat in the House of
Representatives;

Third, the three-seat limit — each qualified

party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that
is, one “qualifying” and two additional seats;

Fourth, proportional representation— the

additional seats which a qualified party is entitled to
shall be computed “in proportion to their total
number of votes.”112[19]

However, because the formula in Veterans has flaws in its

mathematical interpretation of the term “proportional
representation,” this Court is compelled to revisit the formula for
the allocation of additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives

shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who
shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan

111
112
 98

Manila area in accordance with the number of their

respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.

(2) The party-list representatives shall

constitute twenty per centum of the total number of
representatives including those under the party-list.
For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided
by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors
as may be provided by law, except the religious
sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List

Representatives. — The party-list representatives
shall constitute twenty per centum (20%) of the total
number of the members of the House of
Representatives including those under the party-list.
xxx

Section 5(1), Article VI of the Constitution states that the

“House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law.”
The House of Representatives shall be composed of district
representatives and party-list representatives. The Constitution
allows the legislature to modify the number of the members of
the House of Representatives.

Section 5(2), Article VI of the Constitution, on the other

hand, states the ratio of party-list representatives to the total
number of representatives. We compute the number of seats
available to party-list representatives from the number of
legislative districts. On this point, we do not deviate from the
first formula in Veterans, thus:

Number of Number of seats

seats available x. available to
to legislative 20 party-list
districts = representatives
.80

This formula allows for the corresponding increase in the

number of seats available for party-list representatives whenever
a legislative district is created by law. Since the 14 th Congress of
the Philippines has 220 district representatives, there are 55 seats
available to party-list representatives.
 99

220 x. 55
20
=
.80

After prescribing the ratio of the number of party-list

representatives to the total number of representatives, the
Constitution left the manner of allocating the seats available
to party-list representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:

The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum

number of seats reserved under the Party-List System, as well as
on the formula to determine the guaranteed seats to party-list
candidates garnering at least two-percent of the total party-list
votes. However, there are numerous interpretations of the
provisions of R.A. No. 7941 on the allocation of “additional
seats” under the Party-List System. Veterans produced the First
Party Rule,113[20] and Justice Vicente V. Mendoza’s dissent in
Veterans presented Germany’s Niemeyer formula 114[21] as an
alternative.

The Constitution left to Congress the determination of the

manner of allocating the seats for party-list representatives.
Congress enacted R.A. No. 7941, paragraphs (a) and (b) of
Section 11 and Section 12 of which provide:

Section 11. Number of Party-List

Representatives. — x x x

In determining the allocation of seats for the

second vote,115[22] the following procedure shall be
observed:

(a) The parties, organizations, and coalitions shall

be ranked from the highest to the lowest based on the
number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions

receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one
seat each: Provided, That those garnering more
than two percent (2%) of the votes shall be
entitled to additional seats in proportion to their
total number of votes: Provided, finally, That each
party, organization, or coalition shall be entitled to
not more than three (3) seats.
113
114
115
 100

Section 12. Procedure in Allocating Seats for

Party-List Representatives. — The COMELEC shall
tally all the votes for the parties, organizations, or
coalitions on a nationwide basis, rank them according
to the number of votes received and allocate party-
list representatives proportionately according to the
percentage of votes obtained by each party,
organization, or coalition as against the total
nationwide votes cast for the party-list system.
(Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations

through three formulas to allocate party-list representative seats.

The first interpretation allegedly harmonizes the provisions

of Section 11(b) on the 2% requirement with Section 12 of R.A.
No. 7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute

twenty percent (20%) of the total Members of the
House of Representatives including those from the
party-list groups as prescribed by Section 5, Article
VI of the Constitution, Section 11 (1 st par.) of RA
7941 and Comelec Resolution No. 2847 dated 25
June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be
55 Party-List Representatives. All seats shall have to
be proclaimed.

(b) All party-list groups shall initially be allotted

one (1) seat for every two per centum (2%) of the
total party-list votes they obtained; provided, that no
party-list groups shall have more than three (3) seats
(Section 11, RA 7941).

(c) The remaining seats shall, after deducting the

seats obtained by the party-list groups under the
immediately preceding paragraph and after deducting
from their total the votes corresponding to those
seats, the remaining seats shall be allotted
proportionately to all the party-list groups which
have not secured the maximum three (3) seats under
the 2% threshold rule, in accordance with Section 12
of RA 7941.116[23]

Forty-four (44) party-list seats will be awarded under BANAT’s

first interpretation.

The second interpretation presented by BANAT assumes

that the 2% vote requirement is declared unconstitutional, and
apportions the seats for party-list representatives by following
Section 12 of R.A. No. 7941. BANAT states that the
116
 101

COMELEC:

(a) shall tally all the votes for the parties,

organizations, or coalitions on a nationwide basis;
(b) rank them according to the number of votes
received; and,
(c) allocate party-list representatives
proportionately according to the percentage of
votes obtained by each party, organization or
coalition as against the total nationwide votes
cast for the party-list system.117[24]

BANAT used two formulas to obtain the same results: one is

based on the proportional percentage of the votes received by
each party as against the total nationwide party-list votes, and the
other is “by making the votes of a party-list with a median
percentage of votes as the divisor in computing the allocation of
seats.”118[25] Thirty-four (34) party-list seats will be awarded
under BANAT’s second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher

criticize both the COMELEC’s original 2-4-6 formula and the
Veterans formula for systematically preventing all the party-list
seats from being filled up. They claim that both formulas do not
factor in the total number of seats alloted for the entire Party-List
System. Bayan Muna, Abono, and A Teacher reject the three-
seat cap, but accept the 2% threshold. After determining the
qualified parties, a second percentage is generated by dividing
the votes of a qualified party by the total votes of all qualified
parties only. The number of seats allocated to a qualified party is
computed by multiplying the total party-list seats available with
the second percentage. There will be a first round of seat
allocation, limited to using the whole integers as the equivalent
of the number of seats allocated to the concerned party-list.
After all the qualified parties are given their seats, a second
round of seat allocation is conducted. The fractions, or
remainders, from the whole integers are ranked from highest to
lowest and the remaining seats on the basis of this ranking are
allocated until all the seats are filled up.119[26]

We examine what R.A. No. 7941 prescribes to allocate

seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of

the participating parties from the highest to the lowest based on
the number of votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the

lowest based on the number of votes garnered during the elections. 120
[27]

117
118
119
120
 102

Votes Votes
Rank Party Rank Party
Garnered Garnered
1 BUHAY 1,169,234 48 KALAHI 88,868
2 BAYAN 979,039 49 APOI 79,386
MUNA
3 CIBAC 755,686 50 BP 78,541
4 GABRIELA 621,171 51 AHONBAYAN 78,424
5 APEC 619,657 52 BIGKIS 77,327
6 A TEACHER 490,379 53 PMAP 75,200
7 AKBAYAN 466,112 54 AKAPIN 74,686
8 ALAGAD 423,149 55 PBA 71,544
9 COOP- 409,883 56 GRECON 62,220
NATCCO
10 BUTIL 409,160 57 BTM 60,993
11 BATAS 385,810 58 A SMILE 58,717
12 ARC 374,288 59 NELFFI 57,872
13 ANAKPAWIS 370,261 60 AKSA 57,012
14 ABONO 339,990 61 BAGO 55,846
15 AMIN 338,185 62 BANDILA 54,751
16 AGAP 328,724 63 AHON 54,522
17 AN WARAY 321,503 64 ASAHAN MO 51,722
18 YACAP 310,889 65 AGBIAG! 50,837
19 FPJPM 300,923 66 SPI 50,478
20 UNI-MAD 245,382 67 BAHANDI 46,612
21 ABS 235,086 68 ADD 45,624
22 KAKUSA 228,999 69 AMANG 43,062
23 KABATAAN 228,637 70 ABAY PARAK 42,282
24 ABA-AKO 218,818 71 BABAE KA 36,512
25 ALIF 217,822 72 SB 34,835
26 SENIOR 213,058 73 ASAP 34,098
CITIZENS
27 AT 197,872 74 PEP 33,938
28 VFP 196,266 75 ABA 33,903
ILONGGO
29 ANAD 188,521 76 VENDORS 33,691
30 BANAT 177,028 77 ADD-TRIBAL 32,896
31 ANG 170,531 78 ALMANA 32,255
KASANGGA
32 BANTAY 169,801 79 AANGAT KA 29,130
PILIPINO
33 ABAKADA 166,747 80 AAPS 26,271
34 1-UTAK 164,980 81 HAPI 25,781
35 TUCP 162,647 82 AAWAS 22,946
 103

36 COCOFED 155,920 83 SM 20,744

37 AGHAM 146,032 84 AG 16,916
38 ANAK 141,817 85 AGING 16,729
PINOY
39 ABANSE! 130,356 86 APO 16,421
PINAY
40 PM 119,054 87 BIYAYANG 16,241
BUKID
41 AVE 110,769 88 ATS 14,161
42 SUARA 110,732 89 UMDJ 9,445
43 ASSALAM 110,440 90 BUKLOD 8,915
FILIPINA
44 DIWA 107,021 91 LYPAD 8,471
45 ANC 99,636 92 AA- 8,406
KASOSYO
46 SANLAKAS 97,375 93 KASAPI 6,221
47 ABC 90,058 TOTAL 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that “parties,
organizations, and coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one seat each.” This clause
guarantees a seat to the two-percenters. In Table 2 below, we use the first 20
party-list candidates for illustration purposes. The percentage of votes garnered
by each party is arrived at by dividing the number of votes garnered by each party
by 15,950,900, the total number of votes cast for all party-list candidates.

Table 2. The first 20 party-list candidates and their respective

percentage of votes garnered over the total votes for the party-list. 121[28]

Votes
Garnered
Votes over Total Guaranteed
Rank Party
Garnered Votes for Seat
Party-List,
in %
1 BUHAY 1,169,234 7.33% 1
2 BAYAN 979,039 6.14% 1
MUNA
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP- 409,883 2.57% 1
NATCCO
121
 104

10 BUTIL 409,160 2.57% 1

11 BATAS122[29] 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
Total 17
18 YACAP 310,889 1.95% 0
19 FPJPM 300,923 1.89% 0
20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list

candidates received at least 2% from the total number of votes
cast for party-list candidates. The 17 qualified party-list
candidates, or the two-percenters, are the party-list candidates
that are “entitled to one seat each,” or the guaranteed seat. In
this first round of seat allocation, we distributed 17 guaranteed
seats.
The second clause of Section 11(b) of R.A. No. 7941
provides that “those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion to their
total number of votes.” This is where petitioners’ and
intervenors’ problem with the formula in Veterans lies.
Veterans interprets the clause “in proportion to their total number
of votes” to be in proportion to the votes of the first party.
This interpretation is contrary to the express language of R.A.
No. 7941.

We rule that, in computing the allocation of additional

seats, the continued operation of the two percent threshold for
the distribution of the additional seats as found in the second
clause of Section 11(b) of R.A. No. 7941 is unconstitutional.
This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of
available party list seats when the number of available party list
seats exceeds 50. The continued operation of the two percent
threshold in the distribution of the additional seats frustrates the
attainment of the permissive ceiling that 20% of the members of
the House of Representatives shall consist of party-list
representatives.

To illustrate: There are 55 available party-list seats.

Suppose there are 50 million votes cast for the 100 participants
in the party list elections. A party that has two percent of the
votes cast, or one million votes, gets a guaranteed seat. Let us
further assume that the first 50 parties all get one million votes.
Only 50 parties get a seat despite the availability of 55 seats.

122
 105

Because of the operation of the two percent threshold, this

situation will repeat itself even if we increase the available party-
list seats to 60 seats and even if we increase the votes cast to 100
million. Thus, even if the maximum number of parties get two
percent of the votes for every party, it is always impossible for
the number of occupied party-list seats to exceed 50 seats as long
as the two percent threshold is present.

We therefore strike down the two percent threshold only in

relation to the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the Constitution
and prevents the attainment of “the broadest possible
representation of party, sectoral or group interests in the House
of Representatives.”123[30]

In determining the allocation of seats for party-list

representatives under Section 11 of R.A. No. 7941, the following
procedure shall be observed:

- The parties, organizations, and coalitions shall be ranked

from the highest to the lowest based on the number of votes they
garnered during the elections.

- The parties, organizations, and coalitions receiving at least

two percent (2%) of the total votes cast for the party-list system
shall be entitled to one guaranteed seat each.

- Those garnering sufficient number of votes, according to

the ranking in paragraph 1, shall be entitled to additional seats in
proportion to their total number of votes until all the additional
seats are allocated.

- Each party, organization, or coalition shall be entitled to

not more than three (3) seats.

In computing the additional seats, the guaranteed seats

shall no longer be included because they have already been
allocated, at one seat each, to every two-percenter. Thus, the
remaining available seats for allocation as “additional seats” are
the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence
of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.

In declaring the two percent threshold unconstitutional, we

do not limit our allocation of additional seats in Table 3 below to
the two-percenters. The percentage of votes garnered by each
party-list candidate is arrived at by dividing the number of votes
garnered by each party by 15,950,900, the total number of votes
cast for party-list candidates. There are two steps in the second
round of seat allocation. First, the percentage is multiplied by the
remaining available seats, 38, which is the difference between
123
 106

the 55 maximum seats reserved under the Party-List System and

the 17 guaranteed seats of the two-percenters. The whole integer
of the product of the percentage and of the remaining available
seats corresponds to a party’s share in the remaining available
seats. Second, we assign one party-list seat to each of the parties
next in rank until all available seats are completely distributed.
We distributed all of the remaining 38 seats in the second round
of seat allocation. Finally, we apply the three-seat cap to
determine the number of seats each qualified party-list candidate
is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Votes Guaranteed Additional (B) plus

Applying
Garnered Seat Seats (C), in
the three
over whole
seat cap
Total integers
Votes for
Votes
Rank Party Party List,
Garnered
in %
(First (Second
Round) Round)
(E)
(A) (B) (C) (D)
1 BUHAY 1,169,234 7.33% 1 2.79 3 N.A.
2 BAYAN 979,039 6.14% 1 2.33 3 N.A.
MUNA
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
9124[31] COOP- 409,883 2.57% 1 1 2 N.A.
NATCCO
10 BUTIL 409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
13 ANAKPAWIS 370,261 2.32% 1 1 2 N.A.
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN WARAY 321,503 2.02% 1 1 2 N.A.
18 YACAP 310,889 1.95% 0 1 1 N.A.
19 FPJPM 300,923 1.89% 0 1 1 N.A.
20 UNI-MAD 245,382 1.54% 0 1 1 N.A.
21 ABS 235,086 1.47% 0 1 1 N.A.
22 KAKUSA 228,999 1.44% 0 1 1 N.A.
23 KABATAAN 228,637 1.43% 0 1 1 N.A.
124
 107

24 ABA-AKO 218,818 1.37% 0 1 1 N.A.

25 ALIF 217,822 1.37% 0 1 1 N.A.
26 SENIOR 213,058 1.34% 0 1 1 N.A.
CITIZENS
27 AT 197,872 1.24% 0 1 1 N.A.
28 VFP 196,266 1.23% 0 1 1 N.A.
29 ANAD 188,521 1.18% 0 1 1 N.A.
30 BANAT 177,028 1.11% 0 1 1 N.A.
31 ANG 170,531 1.07% 0 1 1 N.A.
KASANGGA
32 BANTAY 169,801 1.06% 0 1 1 N.A.
33 ABAKADA 166,747 1.05% 0 1 1 N.A.
34 1-UTAK 164,980 1.03% 0 1 1 N.A.
35 TUCP 162,647 1.02% 0 1 1 N.A.
36 COCOFED 155,920 0.98% 0 1 1 N.A.
Total 17 55

Applying the procedure of seat allocation as illustrated in

Table 3 above, there are 55 party-list representatives from the 36
winning party-list organizations. All 55 available party-list seats
are filled. The additional seats allocated to the parties with
sufficient number of votes for one whole seat, in no case to
exceed a total of three seats for each party, are shown in column
(D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party

system that allowed all political parties to participate in the
party-list elections. The deliberations of the Constitutional
Commission clearly bear this out, thus:

MR. MONSOD. Madam President, I just want

to say that we suggested or proposed the party list
system because we wanted to open up the political
system to a pluralistic society through a multiparty
system. x x x We are for opening up the system,
and we would like very much for the sectors to be
there. That is why one of the ways to do that is to
put a ceiling on the number of representatives
from any single party that can sit within the 50
allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the

candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify
for example Christian Democrats and Social
Democrats as political parties? Can they run under
the party list concept or must they be under the
 108

district legislation side of it only?

MR. VILLACORTA. In reply to that query, I

think these parties that the Commissioner mentioned
can field candidates for the Senate as well as for the
House of Representatives. Likewise, they can also
field sectoral candidates for the 20 percent or 30
percent, whichever is adopted, of the seats that we
are allocating under the party list system.

MR. MONSOD. In other words, the Christian

Democrats can field district candidates and can also
participate in the party list system?

MR. VILLACORTA. Why not? When they

come to the party list system, they will be fielding
only sectoral candidates.

MR. MONSOD. May I be clarified on that?

Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as

long as they field candidates who come from the
different marginalized sectors that we shall
designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada

wants to run under BAYAN group and says that he
represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada

would not qualify.

MR. MONSOD. But UNIDO can field

candidates under the party list system and say Juan
dela Cruz is a farmer. Who would pass on whether
he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod,

gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not
prohibited to participate in the party list election
if they can prove that they are also organized
along sectoral lines.

MR. MONSOD. What the Commissioner is

saying is that all political parties can participate
because it is precisely the contention of political
parties that they represent the broad base of citizens
and that all sectors are represented in them. Would
the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag

pinayagan mo ang UNIDO na isang political party, it
will dominate the party list at mawawalang saysay
 109

din yung sector. Lalamunin mismo ng political

parties ang party list system. Gusto ko lamang
bigyan ng diin ang “reserve.” Hindi ito reserve seat
sa marginalized sectors. Kung titingnan natin itong
198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi

anybody can run there. But my question to
Commissioner Villacorta and probably also to
Commissioner Tadeo is that under this system, would
UNIDO be banned from running under the party list
system?

MR. VILLACORTA. No, as I said, UNIDO

may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the
party list system.

MR. MONSOD. May I inquire from

Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang

UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will

also create the stimulus for political parties and mass
organizations to seek common ground. For example,
we have the PDP-Laban and the UNIDO. I see no
reason why they should not be able to make common
goals with mass organizations so that the very
leadership of these parties can be transformed
through the participation of mass organizations. And
if this is true of the administration parties, this will be
true of others like the Partido ng Bayan which is now
being formed. There is no question that they will be
attractive to many mass organizations. In the
opposition parties to which we belong, there will be a
stimulus for us to contact mass organizations so that
with their participation, the policies of such parties
can be radically transformed because this amendment
will create conditions that will challenge both the
mass organizations and the political parties to come
together. And the party list system is certainly
available, although it is open to all the parties. It is
understood that the parties will enter in the roll of the
COMELEC the names of representatives of mass
organizations affiliated with them. So that we may,
in time, develop this excellent system that they have
in Europe where labor organizations and
cooperatives, for example, distribute themselves
either in the Social Democratic Party and the
 110

Christian Democratic Party in Germany, and their

very presence there has a transforming effect upon
the philosophies and the leadership of those parties.

It is also a fact well known to all that in the

United States, the AFL-CIO always vote with the
Democratic Party. But the businessmen, most of
them, always vote with the Republican Party,
meaning that there is no reason at all why political
parties and mass organizations should not combine,
reenforce, influence and interact with each other so
that the very objectives that we set in this
Constitution for sectoral representation are achieved
in a wider, more lasting, and more institutionalized
way. Therefore, I support this [Monsod-Villacorta]
amendment. It installs sectoral representation as a
constitutional gift, but at the same time, it challenges
the sector to rise to the majesty of being elected
representatives later on through a party list system;
and even beyond that, to become actual political
parties capable of contesting political power in the
wider constitutional arena for major political parties.

x x x 125[32] (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put
forward by the Constitutional Commission. Section 3 of R.A.
No. 7941 reads:

Definition of Terms. (a) The party-list system is

a mechanism of proportional representation in the
election of representatives to the House of
Representatives from national, regional and sectoral
parties or organizations or coalitions thereof
registered with the Commission on Elections
(COMELEC). Component parties or organizations of
a coalition may participate independently provided
the coalition of which they form part does not
participate in the party-list system.

(b) A party means either a political party or a

sectoral party or a coalition of parties.

(c) A political party refers to an organized

group of citizens advocating an ideology or platform,
principles and policies for the general conduct of
government and which, as the most immediate means
of securing their adoption, regularly nominates and
supports certain of its leaders and members as
candidates for public office.

It is a national party when its constituency is

spread over the geographical territory of at least a
majority of the regions. It is a regional party when its
constituency is spread over the geographical territory
125
 111

of at least a majority of the cities and provinces

comprising the region.

(d) A sectoral party refers to an organized

group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal
advocacy pertains to the special interests and
concerns of their sector,

(e) A sectoral organization refers to a group of

citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics,
employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly

registered national, regional, sectoral parties or
organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to

prevent any party from dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major

political parties from participating in the party-list system. On
the contrary, the framers of the Constitution clearly intended the
major political parties to participate in party-list elections
through their sectoral wings. In fact, the members of the
Constitutional Commission voted down, 19-22, any permanent
sectoral seats, and in the alternative the reservation of the party-
list system to the sectoral groups. 126[33] In defining a “party” that
participates in party-list elections as either “a political party or a
sectoral party,” R.A. No. 7941 also clearly intended that major
political parties will participate in the party-list elections.
Excluding the major political parties in party-list elections is
manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court
cannot engage in socio-political engineering and judicially
legislate the exclusion of major political parties from the party-
list elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the

Constitutional Commission state that major political parties are
allowed to establish, or form coalitions with, sectoral
organizations for electoral or political purposes. There should
not be a problem if, for example, the Liberal Party participates in
the party-list election through the Kabataang Liberal ng Pilipinas
(KALIPI), its sectoral youth wing. The other major political
parties can thus organize, or affiliate with, their chosen sector or
sectors. To further illustrate, the Nacionalista Party can establish
a fisherfolk wing to participate in the party-list election, and this
fisherfolk wing can field its fisherfolk nominees. Kabalikat ng
Malayang Pilipino (KAMPI) can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in

Section 9 of R.A. No. 7941:
126
 112

Qualifications of Party-List Nominees. — No

person shall be nominated as party-list representative
unless he is a natural born citizen of the Philippines,
a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately
preceding the day of the elections, able to read and
write, bona fide member of the party or organization
which he seeks to represent for at least ninety (90)
days preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the
election.

In case of a nominee of the youth sector, he

must at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election.
Any youth sectoral representative who attains the age
of thirty (30) during his term shall be allowed to
continue until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the

party-list organization’s nominee “wallow in poverty, destitution
and infirmity”127[34] as there is no financial status required in the
law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and
underrepresented sectors,128[35] that is, if the nominee represents
the fisherfolk, he or she must be a fisherfolk, or if the nominee
represents the senior citizens, he or she must be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the

filling-up of the entire 20% allocation of party-list
representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the
number of the members of the House of Representatives to
Congress: “The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise
fixed by law, x x x.” The 20% allocation of party-list
representatives is merely a ceiling; party-list representatives
cannot be more than 20% of the members of the House of
Representatives. However, we cannot allow the continued
existence of a provision in the law which will systematically
prevent the constitutionally allocated 20% party-list
representatives from being filled. The three-seat cap, as a
limitation to the number of seats that a qualified party-list
organization may occupy, remains a valid statutory device that
prevents any party from dominating the party-list elections.
Seats for party-list representatives shall thus be allocated in
accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue

the ruling in Veterans disallowing major political parties from
participating in the party-list elections, directly or indirectly.
Those who voted to continue disallowing major political parties

127
128
 113

from the party-list elections joined Chief Justice Reynato S.

Puno in his separate opinion. On the formula to allocate party-
list seats, the Court is unanimous in concurring with this
ponencia.

WHEREFORE, we PARTIALLY GRANT the petition.

We SET ASIDE the Resolution of the COMELEC dated 3
August 2007 in NBC No. 07-041 (PL) as well as the Resolution
dated 9 July 2007 in NBC No. 07-60. We declare
unconstitutional the two percent threshold in the distribution of
additional party-list seats. The allocation of additional seats
under the Party-List System shall be in accordance with the
procedure used in Table 3 of this Decision. Major political
parties are disallowed from participating in party-list elections.
This Decision is immediately executory. No pronouncement as
to costs.

POWER OF THE COMELEC TO

RESOLVE LEADERSHIP DISPUTES OF
PARTY-LIST

DR. HANS CHRISTIAN M. SENERIS VS.

COMELEC, G.R. No. 178678, April 16, 2009

VELASCO, JR., J.:

The Undisputed Facts

In 1999, private respondent Robles was elected president and

chairperson of BUHAY, a party-list group duly registered with
COMELEC.129[3] The constitution of BUHAY provides for a three-year
term for all its party officers, without re-election. 130[4] BUHAY
participated in the 2001 and 2004 elections, with Robles as its
president. All the required Manifestations of Desire to Participate in
the said electoral exercises, including the Certificates of Nomination
of representatives, carried the signature of Robles as president of
BUHAY.131[5] On January 26, 2007, in connection with the May 2007
elections, BUHAY again filed a Manifestation of its Desire to
Participate in the Party-List System of Representation. 132[6] As in the
past two elections, the manifestation to participate bore the signature
of Robles as BUHAY president.

On March 29, 2007, Robles signed and filed a Certificate of

Nomination of BUHAY’s nominees for the 2007 elections containing
the following names: (i) Rene M. Velarde, (ii) Ma. Carissa
Coscolluela, (iii) William Irwin C. Tieng, (iv) Melchor R. Monsod,
and (v) Teresita B. Villarama. Earlier, however, or on March 27, 2007,
petitioner Hans Christian Señeres, holding himself up as acting
president and secretary-general of BUHAY, also filed a Certificate of
Nomination with the COMELEC, nominating: (i) himself, (ii)

129
130
131
132
 114

Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv) Victor Pablo

C. Trinidad, and (v) Eduardo C. Solangon, Jr.133[7]

Consequently, on April 17, 2007, Señeres filed with the

COMELEC a Petition to Deny Due Course to Certificates of
Nomination.134[8] In it, petitioner Señeres alleged that he was the acting
president and secretary-general of BUHAY, having assumed that
position since August 17, 2004 when Robles vacated the position.
Pushing the point, Señeres would claim that the nominations made by
Robles were, for lack of authority, null and void owing to the
expiration of the latter’s term as party president. Furthermore, Señeres
asserted that Robles was, under the Constitution, 135[9] disqualified from
being an officer of any political party, the latter being the Acting
Administrator of the Light Railway Transport Authority (LRTA), a
government-controlled corporation. Robles, so Señeres would charge,
was into a partisan political activity which civil service members, like
the former, were enjoined from engaging in.

On May 10, 2007, the National Council of BUHAY adopted a

resolution136[10] expelling Señeres as party member for his act of
submitting a Certificate of Nomination for the party. The resolution
reads in part:

WHEREAS, Hans Christian M. Señeres, without authority

from the National Council, caused the filing of his
Certificate of Nomination with the Comelec last 27 March
2007.

WHEREAS, Hans Christian M. Señeres, again without

authority from the National Council, listed in his
Certificate of Nomination names of persons who are not
even members of the Buhay party.

WHEREAS, Hans Christian M. Señeres, knowing fully

well that the National Council had previously approved the
following as its official nominees, to wit x x x to the 2007
Party-List elections; and that Mr. Melquiades A. Robles
was authorized to sign and submit the party’s Certificate of
Nomination with the Comelec; and, with evident
premeditation to put the party to public ridicule and with
scheming intention to create confusion, still proceeded
with the filing of his unauthorized certificate of nomination
even nomination persons who are not members of Buhay.

WHEREAS, Hans Christian M. Señeres, in view of the

foregoing, underwent Party Discipline process pursuant to
Article VII of the Constitution and By-Laws of the Party.

xxxx

WHEREAS, after a careful examination of the [evidence]

on his case, the National Council found Hans Christian M.
133
134
135
136
 115

Señeres to have committed acts in violation of the

constitution and by-laws of the party and decided to expel
him as a member of the party.

NOW THEREFORE, be it RESOLVED as it is hereby

RESOLVED that the National Council has decided to
expel Hans M. Señeres as a member of the party effective
close of business hour of 10 May 2007.

BE IT RESOLVED FURTHER, that all rights and

privileges pertaining to the membership of Hans M.
Señeres with the party are consequently cancelled.

BE IT RESOLVED FURTHER, that the President and

Chairman of the National Council of Buhay, Mr.
Melquiades A. Robles, is hereby authorized to cause the
necessary filing of whatever documents/letters before the
House of Representatives and/or to any other
entity/agency/person to remove/drop Mr. Señeres’ name in
the roll of members in the said lower house. 137[11]

Later developments saw Robles filing a petition praying for the

recognition of Jose D. Villanueva as the new representative of
BUHAY in the House of Representatives for the remaining term until
June 30, 2007.138[12] Attached to the petition was a copy of the
expelling resolution adverted to. Additionally, Robles also filed on the
same day an “Urgent Motion to Declare Null and Void the Certificate
of Nomination and Certificates of Acceptance filed by Hans Christian
M. Señeres, Hermenegildo Dumlao, Antonio R. Bautista, Victor Pablo
Trinidad and Eduardo Solangon, Jr.”139[13]

On July 9 and July 18, 2007, respectively, the COMELEC issued

two resolutions proclaiming BUHAY as a winning party-list
organization for the May 2007 elections entitled to three (3) House
seats.140[14]

This was followed by the issuance on July 19, 2007 by the en

banc COMELEC of Resolution E.M. No. 07-043 recognizing and
declaring Robles as the president of BUHAY and, as such, was the one
“duly authorized to sign documents in behalf of the party particularly
the Manifestation to participate in the party-list system of
representation and the Certification of Nomination of its
nominees.”141[15] Explaining its action, COMELEC stated that since no
party election was held to replace Robles as party president, then he
was holding the position in a hold-over capacity. 142[16]

The COMELEC disposed of the partisan political activity issue

with the terse observation that Señeres’ arguments on the applicability
to Robles of the prohibition on partisan political activity were

137
138
139
140
141
142
 116

unconvincing.143[17] The dispositive portion of the COMELEC

Resolution reads:

WHEREFORE, premises considered, this

Commission (En Banc) hereby recognizes Melquiades A.
Robles as the duly authorized representative of Buhay
Hayaan Yumabong (Buhay) and to act for and in its behalf
pursuant to its Constitution and By-Laws.

SO ORDERED.144[18]

On July 20, 2007, the first three (3) listed nominees of BUHAY
for the May 2007 elections, as per the Certificate of Nomination filed
by Robles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and
William Irwin C. Tieng, took their oaths of office as BUHAY party-list
representatives in the current Congress. 145[19] Accordingly, on
September 3, 2007, the COMELEC, sitting as National Board of
Canvassers, issued a Certificate of Proclamation to BUHAY and its
nominees as representatives to the House of Representatives. 146[20]

Aggrieved, petitioner filed the instant petition.

The Issue

Whether or not the COMELEC acted without or in excess

of jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction in issuing its challenged
Resolution dated June 19, 2007, which declared respondent
Robles as the duly authorized representative of BUHAY,
and there is no appeal or any other plain, speedy or
adequate remedy in the ordinary course of law except the
instant petition.

HELD:

The petition should be dismissed for lack of merit.

Petition for Certiorari Is an Improper Remedy

A crucial matter in this recourse is whether the petition for

certiorari filed by Señeres is the proper remedy.

A special civil action for certiorari may be availed of when the

tribunal, board, or officer exercising judicial or quasi-judicial
functions has acted without or in excess of jurisdiction and there is no
appeal or any plain, speedy, and adequate remedy in the ordinary
course of law for the purpose of annulling the proceeding. 147[21] It is
the “proper remedy to question any final order, ruling and decision of
the COMELEC rendered in the exercise of its adjudicatory or quasi-
judicial powers.”148[22] For certiorari to prosper, however, there must be
a showing that the COMELEC acted with grave abuse of discretion
143
144
145
146
147
148
 117

and that there is no appeal or any plain, speedy and adequate remedy
in the ordinary course of law.

In the present case, a plain, speedy and adequate remedy in the

ordinary course of law was available to Señeres. The 1987
Constitution cannot be more explicit in this regard. Its Article VI,
Section 17 states:

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. x x x

This constitutional provision is reiterated in Rule 14 of the 1991

Revised Rules of the Electoral Tribunal of the House of
Representatives, to wit:
RULE 14. Jurisdiction.—The Tribunal shall be the
sole judge of all contests relating to the election, returns
and qualifications of the Members of the House of
Representatives.

In Lazatin v. House Electoral Tribunal, the Court elucidated on

the import of the word “sole” in Art. VI, Sec. 17 of the Constitution,
thus:

The use of the word ‘sole’ emphasizes the exclusive

character of the jurisdiction conferred. The exercise of the
power by the Electoral Commission under the 1935
Constitution has been described as ‘intended to be as
complete and unimpaired as if it had remained originally in
the legislature.’ Earlier, this grant of power to the
legislature was characterized by Justice Malcolm as ‘full,
clear and complete.’ Under the amended 1935
Constitution, the power was unqualifiedly reposed upon
the Electoral Tribunal and it remained as full, clear and
complete as that previously granted the legislature and the
Electoral Commission. The same may be said with regard
to the jurisdiction of the Electoral Tribunals under the 1987
Constitution.”149[23]

Then came Rasul v. COMELEC and Aquino-Oreta, in which the

Court again stressed that “the word ‘sole’ in Sec. 17, Art. VI of the
1987 Constitution and Sec. 250 of the Omnibus Election Code
underscore the exclusivity of the Tribunal’s jurisdiction over election
contests relating to its members.”150[24]

The House of Representatives Electoral Tribunal’s (HRET’s)

sole and exclusive jurisdiction over contests relative to the election,
returns and qualifications of the members of the House of
Representatives “begins only after a candidate has become a member
of the House of Representatives.” 151[25] Thus, once a winning candidate
has been proclaimed, taken his oath, and assumed office as a Member
149
150
151
 118

of the House of Representatives, COMELEC’s jurisdiction over

elections relating to the election, returns, and qualifications ends, and
the HRET’s own jurisdiction begins.152[26]

It is undisputed that the COMELEC, sitting as National Board of

Canvassers, proclaimed BUHAY as a winning party-list organization
for the May 14, 2007 elections, entitled to three (3) seats in the House
of Representatives.153[27] The proclamation came in the form of two
Resolutions dated July 9, 2007 and July 18, 2007, 154[28] respectively.
Said resolutions are official proclamations of COMELEC considering
it is BUHAY that ran for election as party-list organization and not the
BUHAY nominees.

The following day, on July 19, 2007, the COMELEC issued the
assailed resolution declaring “Melquiades A. Robles as the duly
authorized representative of Buhay Hayaan Yumabong (Buhay) and to
act in its behalf pursuant to its Constitution and By-Laws.”
COMELEC affirmed that his Certificate of Nomination was a valid
one as it ruled that “Robles is the President of Buhay Party-List and
therefore duly authorized to sign documents in behalf of the party
particularly the Manifestation to participate in the pary-list system of
representation and the Certificate of Nomination of its
nominees.”155[29] The September 3, 2007 proclamation merely
confirmed the challenged July 19, 2007 Resolution. The July 19, 2007
Resolution coupled with the July 9, 2007 and July 18, 2007
proclamations vested the Robles nominees the right to represent
BUHAY as its sectoral representatives.

Consequently, the first three (3) nominees in the Certificate of

Nomination submitted by Robles then took their oaths of office before
the Chief Justice on July 20, 2007 and have since then exercised their
duties and functions as BUHAY Party-List representatives in the
current Congress.

Without a doubt, at the time Señeres filed this petition before this
Court on July 23, 2007, the right of the nominees as party-list
representatives had been recognized and declared in the July 19, 2007
Resolution and the nominees had taken their oath and already assumed
their offices in the House of Representatives. As such, the proper
recourse would have been to file a petition for quo warranto before the
HRET within ten (10) days from receipt of the July 19, 2007
Resolution and not a petition for certiorari before this Court. 156[30]

Since Señeres failed to file a petition for quo warranto before the
HRET within 10 days from receipt of the July 19, 2007 Resolution
declaring the validity of Robles’ Certificate of Nomination, said
Resolution of the COMELEC has already become final and executory.
Thus, this petition has now become moot and can be dismissed
outright. And even if we entertain the instant special civil action, still,
petitioner’s postulations are bereft of merit.

152
153
154
155
156
 119

Act of Nominating Is Not Partisan Political Activity

Petitioner Señeres contends that Robles, acting as BUHAY

President and nominating officer, as well as being the Administrator of
the LRTA, was engaging in electioneering or partisan political
campaign. He bases his argument on the Constitution, which prohibits
any officer or employee in the civil service from engaging, directly or
indirectly, in any electioneering or partisan political campaign. 157[31] He
also cites Sec. 4 of the Civil Service Law which provides that “no
officer or employee in the Civil Service x x x shall engage in any
partisan political activity.” Lastly, he mentions Sec. 26(i) of the
Omnibus Election Code which makes it “an election offense for any
officer in the civil service to directly or indirectly x x x engage in any
partisan political activity.”

This contention lacks basis and is far from being persuasive. The
terms “electioneering” and “partisan political activity” have well-
established meanings in the Omnibus Election Code, to wit:

Section 79. x x x
(b) The term ‘election campaign’ or ‘partisan
political activity’ refers to an act designed to promote the
election or defeat of a particular candidate or candidates to
a public office which shall include:

(1) Forming organizations, associations, clubs,

committees, or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or
against a candidate;
(2) Holding political 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;

(3) Making speeches, announcements or

commentaries, or holding interviews for or against the
election of any candidate for public office;

(4) Publishing or distributing campaign literature or

materials designed to support or oppose the election of any
candidate; or

(5) Directly or indirectly soliciting votes, pledges or

support for or against a candidate.

The foregoing enumerated acts if performed for

the purpose of enhancing the chances of aspirants for
nominations for candidacy to a public office by a
political party, agreement, or coalition of parties shall
not be considered as election campaign or partisan
election activity.

Public expression of opinions or discussions of

probable issues in a forthcoming election or on attributes
157
 120

of or criticisms against probable candidates proposed to be

nominated in a forth coming political party convention
shall not be construed as part of any election campaign or
partisan political activity contemplated under this Article.
(Emphasis supplied.)

Guided by the above perspective, Robles’ act of submitting a

nomination list for BUHAY cannot, without more, be considered
electioneering or partisan political activity within the context of the
Election Code. First of all, petitioner did not aver that Robles
committed any of the five (5) acts defined in the aforequoted Sec.
79(b) of the Code, let alone adduce proof to show the fact of
commission.

Second, even if Robles performed any of the previously

mentioned acts, Sec. 79 of the Code is nonetheless unequivocal that if
the same is done only for the “purpose of enhancing the chances of
aspirants for nominations for candidacy to a public office by a political
party, agreement, or coalition of parties,” it is not considered as a
prohibited electioneering or partisan election activity.
From this provision, one can conclude that as long as the acts
embraced under Sec. 79 pertain to or are in connection with the
nomination of a candidate by a party or organization, then such are
treated as internal matters and cannot be considered as electioneering
or partisan political activity. The twin acts of signing and filing a
Certificate of Nomination are purely internal processes of the party or
organization and are not designed to enable or ensure the victory of the
candidate in the elections. The act of Robles of submitting the
certificate nominating Velarde and others was merely in compliance
with the COMELEC requirements for nomination of party-list
representatives and, hence, cannot be treated as electioneering or
partisan political activity proscribed under by Sec. 2(4) of Art. IX(B)
of the Constitution for civil servants.

Moreover, despite the fact that Robles is a nominating officer, as

well as Chief of the LRTA, petitioner was unable to cite any legal
provision that prohibits his concurrent positions of LRTA President
and acting president of a party-list organization or that bars him from
nominating.

Last but not least, the nomination of Velarde, Coscolluela, Tieng,

Monsod, and Villarama to the 2007 party-list elections was, in the final
analysis, an act of the National Council of BUHAY. Robles’ role in
the nominating process was limited to signing, on behalf of BUHAY,
and submitting the party’s Certificate of Nomination to the
COMELEC.158[32] The act of nominating BUHAY’s representatives
was veritably a direct and official act of the National Council of
BUHAY and not Robles’. Be that as it may, it is irrelevant who among
BUHAY’s officials signs the Certificate of Nomination, as long as the
signatory was so authorized by BUHAY. The alleged disqualification
of Robles as nominating officer is indeed a non-issue and does not
affect the act of the National Council of nominating Velarde and
others. Hence, the Certificate of Nomination, albeit signed by Robles,
is still the product of a valid and legal act of the National Council of
158
 121

BUHAY. Robles’ connection with LRTA could not really be

considered as a factor invalidating the nomination process.

“Hold-Over” Principle Applies

Petitioner Señeres further maintains that at the time the

Certificate of Nomination was submitted, Robles’ term as President of
BUHAY had already expired, thus effectively nullifying the Certificate
of Nomination and the nomination process.

Again, petitioner’s contention is untenable. As a general rule,

officers and directors of a corporation hold over after the expiration of
their terms until such time as their successors are elected or
appointed.159[33] Sec. 23 of the Corporation Code contains a provision
to this effect, thus:
Section 23. The board of directors or trustees.—Unless
otherwise provided in this Code, the corporate powers of
all corporations formed under this Code shall be exercised,
all business conducted and all property of such
corporations controlled and held by the board of directors
or trustees to be elected from among the holders of stocks,
or where there is no stock, from among the members of the
corporation, who shall hold office for one (1) year until
their successors are elected and qualified.

The holdover doctrine has, to be sure, a purpose which is at

once legal as it is practical. It accords validity to what would otherwise
be deemed as dubious corporate acts and gives continuity to a
corporate enterprise in its relation to outsiders. 160[34] This is the
analogical situation obtaining in the present case. The voting members
of BUHAY duly elected Robles as party President in October 1999.
And although his regular term as such President expired in October
2002,161[35] no election was held to replace him and the other original
set of officers.162[36] Further, the constitution and by-laws of BUHAY
do not expressly or impliedly prohibit a hold-over situation. As such,
since no successor was ever elected or qualified, Robles remained the
President of BUHAY in a “hold-over” capacity.

Authorities are almost unanimous that one who continues with

the discharge of the functions of an office after the expiration of his or
her legal term––no successor having, in the meantime, been appointed
or chosen––is commonly regarded as a de facto officer, even where no
provision is made by law for his holding over and there is nothing to
indicate the contrary.163[37] By fiction of law, the acts of such de facto
officer are considered valid and effective. 164[38]

So it must be for the acts of Robles while serving as a hold-over

Buhay President. Among these acts was the submission of the
nomination certificate for the May 14, 2007 elections.

159
160
161
162
163
164
 122

As a final consideration, it bears to state that petitioner is

estopped from questioning the authority of Robles as President of
BUHAY. As a principle of equity rooted on natural justice, the bar of
estoppel precludes a person from going back on his own acts and
representations to the prejudice of another whom he has led to rely
upon them.165[39]

Again, it cannot be denied that Robles, as BUHAY President,

signed all manifestations of the party’s desire to participate in the 2001
and 2004 elections, as well as all Certificates of Nomination. 166[40] In
fact, the corresponding certificate for the 2004 elections included
petitioner as one of the nominees. During this time, Robles’ term as
President had already expired, and yet, petitioner never questioned
Robles’ authority to sign the Certificate of Nomination. As a matter of
fact, petitioner even benefited from the nomination, because he earned
a seat in the House of Representatives as a result of the party’s
success.167[41] Clearly, petitioner cannot now be heard to argue that
Robles’ term as president of BUHAY has long since expired, and that
his act of submitting the Certificate of Nomination and the
manifestation to participate in the 2007 elections is null and void. He
is already precluded from doing so.

WHEREFORE, the petition is DISMISSED. Resolution E.M.

No. 07-043 of the COMELEC dated July 19, 2007 is AFFIRMED.
No costs.

Section 6. No person shall be a member of

the House of Representatives unless he is a
natural born citizen of the Philippines and,
on the day of the election, is at least 25 years
of age, able to read and write, and except the
party-list representatives, a registered voter
in the district in which he shall be elected,
and a resident thereof for a period of not less
than 1 year immediately preceding the day
of the election.

Read:

Residence requirement for members of the

House of Representatives.

REP. DANILO RAMON FERNANDEZ VS. HOUSE OF

REPRESENTATIVES ELECTORAL TRIBUNAL and JESUS
VICENTE, G.R. No. 187478, December 21, 2009

Petitioner filed for candidacy as Representative of the First

Legislative District of the Province of Laguna in the May 14, 2007
elections. In his Certificate of Candidacy (COC), he indicated his
complete/exact address as “No. 13 Maharlika St., Villa Toledo
Subdivision, Barangay Balibago, Sta. Rosa City, Laguna” (alleged
Sta. Rosa residence).

165
166
167
 123

Private respondent Jesus L. Vicente (private respondent) filed

a “Petition to Deny Due Course to and/or Cancel Certificate of
Candidacy and Petition for Disqualification” before the Office of
the Provincial Election Supervisor of Laguna. This was forwarded
to the Commission on Elections (COMELEC) and docketed therein
as SPA No. 07-046 (PES). Private respondent sought the
cancellation of petitioner’s COC and the latter’s disqualification as
a candidate on the ground of an alleged material misrepresentation
in his COC regarding his place of residence, because during past
elections, he had declared Pagsanjan, Laguna as his address, and
Pagsanjan was located in the Fourth Legislative District of the
Province of Laguna. Private respondent likewise claimed that
petitioner maintained another house in Cabuyao, Laguna, which
was also outside the First District. The COMELEC (First Division)
dismissed said petition for lack of merit.

Petitioner was proclaimed as the duly elected Representative

of the First District of Laguna on June 27, 2007, having garnered a
total of 95,927 votes, winning by a margin of 35,000 votes over
the nearest candidate.

On July 5, 2007, private respondent filed a petition for quo

warranto before the HRET, docketed as HRET CASE No. 07-034,
praying that petitioner be declared ineligible to hold office as a
Member of the House of Representatives representing the First
Legislative District of the Province of Laguna, and that petitioner’s
election and proclamation be annulled and declared null and void.

Private respondent’s main ground for the quo warranto

petition was that petitioner lacked the required one-year residency
requirement provided under Article VI, Section 6 of the 1987
Constitution. In support of his petition, private respondent argued
that petitioner falsely declared under oath: (1) his alleged Sta. Rosa
residence; (2) the period of his residence in the legislative district
before May 14, 2007, which he indicated as one year and two
months; and (3) his eligibility for the office where he was seeking to
be elected. Private respondent presented the testimony of a certain
Atty. Noel T. Tiampong, who stated that petitioner is not from the
alleged Sta. Rosa residence but a resident of Barangay Pulo,
Cabuyao, Laguna; as well as the respective testimonies of
Barangay Balibago Health Workers who attested that they rarely, if
ever, saw respondent in the leased premises at the alleged Sta. Rosa
residence; and other witnesses who testified that contrary to the
misrepresentations of petitioner, he is not a resident of the alleged
Sta. Rosa residence. A witness testified that petitioner attempted to
coerce some of the other witnesses to recant their declarations and
change their affidavits. Finally, private respondent presented as
witness the lawyer who notarized the Contract of Lease dated
March 8, 2007 between petitioner as lessee and Bienvenido G.
Asuncion as lessor.

Petitioner, as respondent in HRET Case No. 07-034,

presented as his witnesses residents of Villa de Toledo who testified
that they had seen respondent and his family residing in their
locality, as well as Bienvenido G. Asuncion who testified that
petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St.,
Villa de Toledo Subdivision, Brgy. Balibago, Sta. Rosa City,
Laguna. Petitioner likewise presented Mr. Joseph Wade, President
of South Point Homeowner’s Association of Cabuyao, Laguna, as
well as Engr. Larry E. Castro (Castro), who testified that since
February 2006 up to the present, petitioner had no longer been
residing in his property located at Block 28, Lot 18, South Point
Subdivision, Cabuyao, Laguna, and that said property was being
offered for sale and temporarily being used by Castro, together with
 124

some security men of petitioner and employees of Rafters Music

Lounge owned by petitioner. Petitioner testified that he had been a
resident of Sta. Rosa even before February 2006; that he owned
property in another Sta. Rosa subdivision (Bel-Air); that he and his
wife had put up a business therein, the “RAFTERS” restaurant/ bar;
and that he had prior residence in another place also at Sta. Rosa as
early as 2001.

Since the HRET ruled in favor of private respondent, this

petition was filed before us.

In petitioner’s assignment of errors, he alleges that the HRET

grievously erred and committed grave abuse of discretion:

1. In not placing on the quo warranto petitioner Jesus L. Vicente the

burden of proving that then respondent (now petitioner) Fernandez
is not a qualified candidate for Representative of the First District of
the Province of Laguna;
2. When it disregarded the ruling of a co-equal tribunal in SPA No.
07-046;
3. When it added a property qualification to a Member of Congress;
4. When it determined that the petitioner failed to comply with the
one (1) year residency requirement based on the contract of lease;

On the first assignment of error, petitioner questions the

following pronouncement of the HRET in its decision:

In the case before us, petitioner has clearly asserted, and

respondent does not deny, that his domicile of origin is Pagsanjan in
the Fourth District of Laguna. Hence, the burden is now on
respondent to prove that he has abandoned his domicile of origin, or
since his birth, where he formerly ran for provincial Board Member
of Laguna in 1998, for Vice-Governor of Laguna in 2001 and for
Governor of Laguna in 2004. In all his Certificates of Candidacy
when he ran for these positions, he indicated under oath that his
domicile or permanent residence was in Pagsanjan in the Fourth
District of Laguna, not in the First District where he later ran in the
last elections.

Petitioner avers that private respondent failed to establish his

claim and to adduce evidence sufficient to overcome petitioner’s
eligibility to be a candidate for Representative of the First District
of Laguna.

On the second assignment of error, petitioner submits that the

HRET should have been “guided and/or cautioned” by the
COMELEC’s dispositions in SPA No. 07-046, wherein he was
adjudged as qualified to run for the position of Congressman of the
First District of Laguna by an agency tasked by law and the
Constitution to ascertain the qualifications of candidates before
election. Petitioner claims that the HRET should have respected the
findings of the COMELEC and should have discreetly denied the
petition.

On the third assignment of error, petitioner argues that under

Article V, Section 1, of the 1987 Constitution, any citizen of the
Philippines who is a qualified voter may likewise, if so qualified
under the appertaining law and the constitution, be able to run and
be voted for as a candidate for public office.

Petitioner alleges that in the questioned Decision, the HRET

added a new qualification requirement for candidates seeking
 125

election to the position of Member of the House of Representatives,

and that is, they must be real property owners in the legislative
district where they seek election.

On the fourth assignment of error, petitioner addresses private

respondent’s arguments against the contract of lease that he
presented as part of the proof of his compliance with the residency
requirement. Petitioner asserts that the nomenclature used by
contracting parties to describe a contract does not determine its
nature, but the decisive factor is the intention of the parties to a
contract – as shown by their conduct, words, actions, and deeds –
prior to, during and after executing the agreement. Petitioner
claims that he has presented ample proof of his residency in terms
of evidence more numerous and bearing more weight and
credibility than those of private respondent. He proceeds to
highlight some of the evidence he offered in the quo warranto case
that allegedly prove that his transfer of residence and intention to
reside in Sta. Rosa were proven by his stay in Villa de Toledo, to
wit: (1) even earlier than 2006, he had purchased a house and lot in
Bel-Air Subdivision in Sta. Rosa which he rented out because he
was not yet staying there at that time; (2) he sent his children to
schools in Sta. Rosa as early as 2002; and (3) he and his wife
established a restaurant business there in 2003. Petitioner contends
that when he and his family moved to Sta. Rosa by initially renting
a townhouse in Villa de Toledo, it cannot be said that he did this
only in order to run for election in the First Legislative District.

As regards the alleged infirmities characterizing the execution

of the contract of lease and the renewal of said contract of lease,
petitioner contends that these are not material since the lessor,
Bienvenido Asuncion, affirmed his stay in his townhouse; the
neighbors and other barangay personalities confirmed his and his
family’s stay in their area; and petitioner has continued actual
residence in Sta. Rosa from early 2006 to the present. Petitioner
claims that all these prove that he had effectively changed his
residence and could therefore likewise transfer his voter’s
registration from Pagsanjan to Sta. Rosa under Sec. 12 of R.A. No.
8189. Petitioner also alleges that he had become qualified to seek
elective office in his new place of residence and registration as a
voter.

To further prove that he has made Sta. Rosa his domicile of

choice from early 2006 to the present, petitioner points out that he
and his wife had purchased a lot in the same area, Villa de Toledo,
on April 21, 2007, built a house thereon, and moved in said house
with their family.

Regarding the non-notarization of the contract of lease raised

by private respondent, petitioner avers that this “does not
necessarily nullify nor render the parties’ transaction void ab
initio.”

HELD:

The issues for determination are: (1) whether the HRET had
jurisdiction over the case; and (2) whether petitioner sufficiently
complied with the one-year residency requirement to be a Member
of the House of Representatives, as provided in the 1987
Constitution.

The first issue is procedural and involves the jurisdiction of

the HRET vis-à-vis that of the COMELEC in cases involving the
qualification of Members of the House of Representatives.
Petitioner suggests that the matters raised in HRET Case No. 07-
 126

034 were already passed upon by the COMELEC in SPA No. 07-
046 (PES), thus the HRET should have dismissed the case for
forum-shopping.

We do not agree. The 1987 Constitution explicitly provides

under Article VI, Section 17 thereof that the HRET and the Senate
Electoral Tribunal (SET) shall be the sole judges of all contests
relating to the election, returns, and qualifications of their
respective members. The authority conferred upon the Electoral
Tribunal is full, clear and complete. The use of the word sole
emphasizes the exclusivity of the jurisdiction of these Tribunals,
which is conferred upon the HRET and the SET after elections and
the proclamation of the winning candidates. A candidate who has
not been proclaimed and who has not taken his oath of office cannot
be said to be a member of the House of Representatives.

Thus, private respondent correctly pointed out that a petition

for quo warranto is within the exclusive jurisdiction of the HRET,
and cannot be considered forum shopping even if, as in this case,
the COMELEC had already passed upon in administrative or quasi-
judicial proceedings the issue of the qualification of the Member of
the House of Representatives while the latter was still a candidate.

Anent the second issue pertaining to petitioner’s compliance

with the residency requirement for Members of the House of
Representatives, after studying the evidence submitted by the
parties, we find for petitioner, taking into account our ruling in
Frivaldo v. COMELEC, which reads in part:

This Court has time and again liberally and equitably construed
the electoral laws of our country to give fullest effect to the
manifest will of our people, for in case of doubt, political laws must
be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and
technicalities cannot stand in the way of the sovereign will. xxx
(Emphasis supplied)

For the foregoing reason, the Court must exercise utmost

caution before disqualifying a winning candidate, shown to be the
clear choice of the constituents that he wishes to represent in
Congress.

The qualifications of a member of the House of

Representatives are found in Article VI, Section 6 of the
Constitution, which provides:

Section 6. No person shall be a Member of the House of

Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age,
able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year
immediately preceding the day of the election. (Emphasis
supplied)

We find the interpretation of the HRET of the residency

requirement under the Constitution to be overly restrictive and
unwarranted under the factual circumstances of this case.

The evidence presented by private respondent before the

HRET hardly suffices to prove that petitioner failed to comply with
the one-year residency requirement under the Constitution. Private
respondent’s documentary evidence to disqualify petitioner mainly
consisted of (a) petitioner’s certificates of candidacy (COCs) for
 127

various positions in 1998, 2001 and 2004, which all indicated his
residence as Pagsanjan, Laguna within the Fourth District of said
province; (b) his application for a driver’s license in August 2005
that indicated Pagsanjan, Laguna as his residence; and (c) the
statement in his COCs including his 2007 COC for Congressman
for the First District of Laguna that his place of birth was
Pagsanjan, Laguna.

The only thing these pieces of documentary evidence prove is

that petitioner’s domicile of origin was Pagsanjan, Laguna and it
remained his domicile up to 2005, at the latest. On the other hand,
what petitioner asserted in his 2007 COC is that he had been a
resident of Sta. Rosa, Laguna in the First District of Laguna as of
February 2006 and respondent’s evidence failed contradict that
claim.

If it is true that petitioner and his family had been living in

Sta. Rosa, Laguna as of February 2006 with the intent to reside
therein permanently, that would more than fulfill the requirement
that petitioner be a resident of the district where he was a candidate
for at least one year before election day, which in this case was May
14, 2007.

In order to buttress his claim that he and his family actually

resided in Sta. Rosa, Laguna beginning at least in February 2006,
petitioner’s evidence included, among others: (a) original and
extended lease contracts for a townhouse in Villa de Toledo,
Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by
the President of the Villa de Toledo Homeowners Association, Inc,
that petitioner has been a resident of said Subdivision since
February 2006; (c) affidavits of petitioner’s neighbors in Villa de
Toledo attesting that petitioner has been a resident of said
subdivision since February 2006; (d) certification of the barangay
chairman of Barangay Balibago, Sta. Rosa, Laguna that petitioner is
a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioner’s children in schools located
in Sta. Rosa, Laguna since 2005; and (f) DTI certificates of business
issued in the name of petitioner and his wife to show that they own
and operate businesses in Sta. Rosa, Laguna since 2003.

The fact that a few barangay health workers attested that they
had failed to see petitioner whenever they allegedly made the
rounds in Villa de Toledo is of no moment, especially considering
that there were witnesses (including petitioner’s neighbors in Villa
de Toledo) that were in turn presented by petitioner to prove that he
was actually a resident of Villa de Toledo, in the address he stated in
his COC. The law does not require a person to be in his home
twenty-four (24) hours a day, seven days a week, in order to fulfill
the residency requirement. It may be that whenever these health
workers do their rounds petitioner was out of the house to attend to
his own employment or business. It is not amiss to note that even
these barangay health workers, with the exception of one, confirm
seeing petitioner’s wife at the address stated in petitioner’s 2007
COC. Indeed, these health workers’ testimonies do not
conclusively prove that petitioner did not in fact reside in Villa de
Toledo for at least the year before election day.

Neither do we find anything wrong if petitioner sometimes

transacted business or received visitors in his Cabuyao house,
instead of the alleged Sta. Rosa residence, as there is nothing in the
residency requirement for candidates that prohibits them from
owning property and exercising their rights of ownership thereto in
other places aside from the address they had indicated as their place
of residence in their COC.
 128

As regards the weight to be given the contract of lease vis-à-

vis petitioner’s previous COCs, we find Perez v. COMELEC to be
instructive in this case, and quote the pertinent portions of the
decision below:

In the case at bar, the COMELEC found that private respondent

changed his residence from Gattaran to Tuguegarao, the capital of
Cagayan, in July 1990 on the basis of the following: (1) the
affidavit of Engineer Alfredo Ablaza, the owner of the residential
apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where
private respondent had lived in 1990; (2) the contract of lease
between private respondent, as lessee, and Tomas T. Decena, as
lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao,
Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the
marriage certificate, dated January 18, 1998, between private
respondent and Lerma Dumaguit; (4) the certificate of live birth of
private respondent's second daughter; and (5) various letters
addressed to private respondent and his family, which all show that
private respondent was a resident of Tuguegarao, Cagayan for at
least one (1) year immediately preceding the elections on May 11,
1998.

There is thus substantial evidence supporting the finding that

private respondent had been a resident of the Third District of
Cagayan and there is nothing in the record to detract from the merit
of this factual finding.

Petitioner contends that the fact that private respondent was a

resident of Gattaran, at least until June 22, 1997, is shown by the
following documentary evidence in the record, to wit: (1) his
certificates of candidacy for governor of Cagayan in the 1988, 1992
and 1995 elections; (2) his voter's registration records, the latest of
which was made on June 22, 1997; and (3) the fact that private
respondent voted in Gattaran, Cagayan, in the elections of 1987,
1988, 1992 and 1995.

The contention is without merit. The fact that a person is

registered as a voter in one district is not proof that he is not
domiciled in another district. Thus, in Faypon v. Quirino, this Court
held that the registration of a voter in a place other than his
residence of origin is not sufficient to consider him to have
abandoned or lost his residence.

Nor is it of much importance that in his certificates of

candidacy for provincial governor in the elections of 1988, 1992,
and 1995, private respondent stated that he was a resident of
Gattaran. Under the law, what is required for the election of
governor is residency in the province, not in any district or
municipality, one year before the election.

Moreover, as this Court said in Romualdez-Marcos v.

COMELEC:

It is the fact of residence, not a statement in a certificate of

candidacy, which ought to be decisive in determining whether or
not an individual has satisfied the constitution's residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a candidate
ineligible.
 129

In this case, although private respondent declared in his

certificates of candidacy prior to the May 11, 1998 elections that he
was a resident of Gattaran, Cagayan, the fact is that he was actually
a resident of the Third District not just for one (1) year prior to the
May 11, 1998 elections but for more than seven (7) years since July
1990. His claim that he had been a resident of Tuguegarao since
July 1990 is credible considering that he was governor from
1988 to 1998 and, therefore, it would be convenient for him to
maintain his residence in Tuguegarao, which is the capital of the
province of Cagayan.

As always, the polestar of adjudication in cases of this nature is

Gallego v. Vera, in which this Court held: "[W]hen the evidence
on the alleged lack of residence qualification is weak or
inconclusive and it clearly appears, as in the instant case, that
the purpose of the law would not be thwarted by upholding the
right to the office, the will of the electorate should be
respected." In this case, considering the purpose of the residency
requirement, i.e., to ensure that the person elected is familiar with
the needs and problems of his constituency, there can be no doubt
that private respondent is qualified, having been governor of the
entire province of Cagayan for ten years immediately before his
election as Representative of that province's Third District.

Thus, in the case above, the Court found that the affidavit of
the lessor and the contract of lease were sufficient proof that private
respondent therein had changed his residence. In the case now
before us, although private respondent raised alleged formal defects
in the contract of lease, the lessor himself testified that as far as he
was concerned, he and petitioner had a valid contract and he
confirmed that petitioner and his family are the occupants of the
leased premises.

Petitioner correctly pointed out that the lack of proper

notarization does not necessarily nullify nor render the parties’
transaction void ab initio. In Mallari v. Alsol, we found a contract
of lease to be valid despite the non-appearance of one of the parties
before a notary public, and ruled in this wise:

Notarization converts a private document into a public

document. However, the non-appearance of the parties before the
notary public who notarized the document does not necessarily
nullify nor render the parties' transaction void ab initio. Thus:
. . . Article 1358 of the New Civil Code on the necessity of a
public document is only for convenience, not for validity or
enforceability. Failure to follow the proper form does not invalidate
a contract. Where a contract is not in the form prescribed by law,
the parties can merely compel each other to observe that form, once
the contract has been perfected. This is consistent with the basic
principle that contracts are obligatory in whatever form they may
have been entered into, provided all essential requisites are present.
Hence, the Lease Contract is valid despite Mayor Perez's
failure to appear before the notary public.

The HRET puts undue emphasis on the fact that petitioner is

only leasing a townhouse in Sta. Rosa while he owns houses in
Pagsanjan and Cabuyao. His ownership of properties in other
places has been taken to mean that petitioner did not intend to make
Sta. Rosa his permanent residence or that he had not abandoned his
domicile of origin.
 130

Although it is true that the latest acquired abode is not

necessarily the domicile of choice of a candidate, there is nothing in
the Constitution or our election laws which require a congressional
candidate to sell a previously acquired home in one district and buy
a new one in the place where he seeks to run in order to qualify for
a congressional seat in that other district. Neither do we see the fact
that petitioner was only leasing a residence in Sta. Rosa at the time
of his candidacy as a barrier for him to run in that district.
Certainly, the Constitution does not require a congressional
candidate to be a property owner in the district where he seeks to
run but only that he resides in that district for at least a year prior to
election day. To use ownership of property in the district as the
determinative indicium of permanence of domicile or residence
implies that only the landed can establish compliance with the
residency requirement. This Court would be, in effect, imposing a
property requirement to the right to hold public office, which
property requirement would be unconstitutional.

This case must be distinguished from Aquino v. COMELEC

and Domino v. COMELEC, where the disqualified candidate was
shown to be merely leasing a residence in the place where he sought
to run for office. In Aquino and Domino, there appeared to be no
other material reason for the candidate to lease residential property
in the place where he filed his COC, except to fulfill the residency
requirement under election laws.

In the case at bar, there are real and substantial reasons for
petitioner to establish Sta. Rosa as his domicile of choice and
abandon his domicile of origin and/or any other previous domicile.
To begin with, petitioner and his wife have owned and operated
businesses in Sta. Rosa since 2003. Their children have attended
schools in Sta. Rosa at least since 2005. Although ownership of
property should never be considered a requirement for any
candidacy, petitioner had sufficiently confirmed his intention to
permanently reside in Sta. Rosa by purchasing residential properties
in that city even prior to the May 2007 election, as evidenced by
certificates of title issued in the name of petitioner and his wife.
One of these properties is a residence in Bel-Air, Sta. Rosa which
petitioner acquired even before 2006 but which petitioner had been
leasing out. He claims that he rented out this property because prior
to 2006 he had not decided to permanently reside in Sta. Rosa. This
could explain why in early 2006 petitioner had to rent a townhouse
in Villa de Toledo— his Bel-Air residence was occupied by a
tenant. The relatively short period of the lease was also adequately
explained by petitioner – they rented a townhouse while they were
in the process of building their own house in Sta. Rosa. True
enough, petitioner and his spouse subsequently purchased a lot also
in Villa de Toledo in April 2007, about a month before election day,
where they have constructed a home for their family’s use as a
residence. In all, petitioner had adequately shown that his transfer
of residence to Sta. Rosa was bona fide and was not merely for
complying with the residency requirement under election laws.

It was incumbent upon private respondent to prove his

assertion that petitioner is indeed disqualified from holding his
congressional seat. Private respondent’s burden of proof was not
only to establish that petitioner’s domicile of origin is different from
Sta. Rosa but also that petitioner’s domicile for the one year prior to
election day continued to be Pagsanjan, Laguna which was
petitioner’s domicile of origin or that petitioner had chosen a
domicile other than Sta. Rosa, Laguna for that same period. In
other words, to prove petitioner’s disqualification, the relevant
period is the one year period prior to election day. It would be
absurd to rule that the petitioner in a quo warranto suit only needs
 131

to prove that the candidate had some other previous domicile,

regardless of how remote in time from election day that previous
domicile was established, and then the candidate would already
have the burden to prove abandonment of that previous domicile. It
is the burden of the petitioner in a quo warranto case to first prove
the very fact of disqualification before the candidate should even be
called upon to defend himself with countervailing evidence.

In our considered view, private respondent failed to discharge

his burden of proof. Petitioner’s COCs for previous elections and
his 2005 application for a driver’s license only proved that his
domicile of origin was Pagsanjan, Laguna and it remained to be so
up to 2005. Affidavits/testimonies of respondent’s witnesses, at
most, tended to prove that petitioner was on several instances found
in his house in Cabuyao, Laguna, which was not even his domicile
of origin. Cabuyao, Laguna is in the Second District of Laguna
while petitioner’s domicile of origin, Pagsanjan, is in the Fourth
District of Laguna. Based on private respondent’s own
documentary submissions, Cabuyao was never even stated as a
domicile or residence in any of the petitioner’s COCs. Moreover,
owning an abode in Cabuyao where petitioner is occasionally found
did not prove that Cabuyao is petitioner’s real domicile. Indeed,
disregarding Cabuyao as petitioner’s domicile would be consistent
with the established principle that physical presence in a place sans
the intent to permanently reside therein is insufficient to establish
domicile. Neither did private respondent’s submissions refute
petitioner’s evidence that since February 2006 petitioner has chosen
Sta. Rosa as his domicile.

To summarize, private respondent’s own evidence did not

categorically establish where petitioner’s domicile is nor did said
evidence conclusively prove that for the year prior to the May 14,
2007 petitioner had a domicile other than where he actually resided,
i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera decreed that:

We might add that the manifest intent of the law in fixing a

residence qualification is to exclude a stranger or newcomer,
unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of
residence qualification is weak or inconclusive and it clearly
appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the
will of the electorate should be respected. xxx xxx xxx
(Emphasis supplied)

Frivaldo likewise prescribed that:

xxx xxx xxx To successfully challenge a winning candidate's

qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and
promote. xxx xxx xxx (Emphasis supplied)

In Torayno, the Court had the occasion to say that:

The Constitution and the law requires residence as a

qualification for seeking and holding elective public office, in order
to give candidates the opportunity to be familiar with the needs,
difficulties, aspirations, potentials for growth and all matters vital to
the welfare of their constituencies; likewise, it enables the electorate
 132

to evaluate the office seekers' qualifications and fitness for the job
they aspire for. xxx xxx xxx

Recently, in Japzon v. COMELEC, the Court, citing

Papandayan, Jr. v. COMELEC, said:

In Papandayan, Jr. v. Commission on Elections, the Court

provided a summation of the different principles and concepts in
jurisprudence relating to the residency qualification for elective
local officials. Pertinent portions of the ratio in Papandayan are
reproduced below:

Our decisions have applied certain tests and concepts in

resolving the issue of whether or not a candidate has complied with
the residency requirement for elective positions. The principle of
animus revertendi has been used to determine whether a candidate
has an "intention to return" to the place where he seeks to be
elected. Corollary to this is a determination whether there has been
an "abandonment" of his former residence which signifies an
intention to depart therefrom. In Caasi v. Court of Appeals, this
Court set aside the appealed orders of the COMELEC and the Court
of Appeals and annulled the election of the respondent as Municipal
Mayor of Bolinao, Pangasinan on the ground that respondent's
immigration to the United States in 1984 constituted an
abandonment of his domicile and residence in the Philippines.
Being a green card holder, which was proof that he was a
permanent resident or immigrant of the United States, and in the
absence of any waiver of his status as such before he ran for
election on January 18, 1988, respondent was held to be
disqualified under §68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives,

respondent Jose Ong, Jr. was proclaimed the duly elected
representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election
against claims that he was not a natural born Filipino citizen and a
resident of Laoang, Northern Samar. In sustaining the ruling of the
HRET, this Court, citing Faypon v. Quirino, applied the concept of
animus revertendi or "intent to return", stating that his absence from
his residence in order to pursue studies or practice his profession as
a certified public accountant in Manila or his registration as a voter
other than in the place where he was elected did not constitute loss
of residence. The fact that respondent made periodical journeys to
his home province in Laoag revealed that he always had animus
revertendi.

In Abella v. Commission on Elections and Larrazabal v.

Commission on Elections, it was explained that the determination of
a person's legal residence or domicile largely depends upon the
intention that may be inferred from his acts, activities, and
utterances. In that case, petitioner Adelina Larrazabal, who had
obtained the highest number of votes in the local elections of
February 1, 1988 and who had thus been proclaimed as the duly
elected governor, was disqualified by the COMELEC for lack of
residence and registration qualifications, not being a resident nor a
registered voter of Kananga, Leyte. The COMELEC ruled that the
attempt of petitioner Larrazabal to change her residence one year
before the election by registering at Kananga, Leyte to qualify her
to run for the position of governor of the province of Leyte was
proof that she considered herself a resident of Ormoc City. This
Court affirmed the ruling of the COMELEC and held that petitioner
Larrazabal had established her residence in Ormoc City, not in
Kananga, Leyte, from 1975 up to the time that she ran for the
 133

position of Provincial Governor of Leyte on February 1, 1988.

There was no evidence to show that she and her husband
maintained separate residences, i.e., she at Kananga, Leyte and her
husband at Ormoc City. The fact that she occasionally visited
Kananga, Leyte through the years did not signify an intention to
continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that

"domicile" and "residence" are synonymous. The term "residence",
as used in the election law, imports not only an intention to reside in
a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure,
or for like reasons, one intends to return. In that case, petitioner
Philip G. Romualdez established his residence during the early
1980's in Barangay Malbog, Tolosa, Leyte. It was held that the
sudden departure from the country of petitioner, because of the
EDSA People's Power Revolution of 1986, to go into self-exile in
the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence.
The Court explained that in order to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the
new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. There must be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is

the fact of residence that is the decisive factor in determining
whether or not an individual has satisfied the residency qualification
requirement.

We do not doubt that the residency requirement is a means to

prevent a stranger or newcomer from holding office on the
assumption that such stranger or newcomer would be insufficiently
acquainted with the needs of his prospective constituents.
However, it is appropriate to point out at this juncture that aside
from petitioner’s actual, physical presence in Sta. Rosa for more
than a year prior to election day, he has demonstrated that he has
substantial ties to Sta. Rosa and the First District of Laguna for an
even longer period than that. Petitioner has business interests in Sta.
Rosa comprised of restaurants and a residential property for lease.
Petitioner has two children studying in Sta. Rosa schools even
before 2006. These circumstances provided petitioner with material
reasons to frequently visit the area and eventually take up residence
in the said district. Significantly, petitioner previously served as
Board Member and Vice-Governor for the Province of Laguna, of
which the First District and Sta. Rosa are a part. It stands to reason
that in his previous elected positions petitioner has acquired
knowledge of the needs and aspirations of the residents of the First
District who were among his constituents.

Simply put, petitioner could not be considered a “stranger” to

the community which he sought to represent and that evil that the
residency requirement was designed to prevent is not present in this
case.

We take this occasion to reiterate our ruling in Sinaca v.

Mula, to wit:

[When] a candidate has received popular mandate,

overwhelmingly and clearly expressed, all possible doubts should
 134

be resolved in favor of the candidate's eligibility for to rule

otherwise is to defeat the will of the people. Above and beyond all,
the determination of the true will of the electorate should be
paramount. It is their voice, not ours or of anyone else, that must
prevail. This, in essence, is the democracy we continue to hold
sacred.
WHEREFORE, premises considered, the petition is hereby
GRANTED.

Meaning of “natural born”

ANTONIO BENGSON III VS. HOUSE OF

REPRESENTATIVES ELECTORAL
TRIBUNAL and TEODORO CRUZ, 357
SCRA 545

Rep. Act No. 2630

“Sec. 1. Any person who had lost his

Philippine Citizenship by rendering service to,
or accepting commission in, the Armed Forces
of the United States, or after separation from
the Armed Forces of the United states, acquired
US citizenship, MAY REACQUIRE
PHILIPPINE CITIZENSHIP BY TAKING AN
OATH OF ALLEGIANCE TO THE
REPUBLIC OF THE PHILIPPINES AND
REGISTERING THE SAME WITH THE
LOCAL CIVIL REGISTRY IN THE PLACE
WHERE HE RESIDES OR LAST RESIDED
IN THE PHILIPPINES. The said Oath of
allegiance shall contain a renunciation of any
other citizenship.”

1. Section 2, Article IV, 1987 Philippine

Constitution

“Section 2. Natural born citizens are

those citizens of the Philippines from
birth without having to perform an act to
acquire or perfect their Philippine
citizenship. Those who elect Philippine
Citizenship in accordance with par. 3* ,
Section 1 shall be deemed natural born
citizens.”

OCAMPO VS. HOUSE ELECTORAL

TRIBUNAL and MARIO CRESPO, a.k.a.
MARK JIMENEZ, June 15, 2004

Who takes the place of the winning

candidate as a Member of the
House of Representatives who was

*
“Those born before January 17, 1973, of Filipino mothers who elect Philippine citizenship upon reaching the age of majority.”
 135

disqualified after he was

proclaimed as such?

Facts:

The petitioner and Mark Jimenez were candidates for

Congressman of the 6th District of manila for the May 14, 2001
elections. Mark Jimenez won over the petitioner with 32,097 votes as
against petitioner’s 31,329 votes.

Petitioner filed an electoral protest before the HRET based on

the following grounds: 1] misreading of ballots; 2] falsification of
election returns; 3]substitution of election returns; 4] use of marked,
spurious fake and stray ballots; and 5] presence of ballots written by
one or two persons.

On March 6, 2003, the HRET issued its Decision in the case of

ABANTE, ET AL. VS. MARI CRESPO, a.k.a. MARK JIMENEZ, et
al., declaring Mark Jimenez “ ineligible for the Office of
Representative of Sixth District of Manila for lack of residence in the
District. Mark Jimenez filed a Motion for Reconsideration which was
denied.

As a result of said disqualification of Jimenez, the petitioner

claimed that all the votes cast for the former should not be counted and
since he garnered the second highest number of votes, he should be
declared winner in the May 14, 2001 elections and be proclaimed the
duly elected Congressman of the 6th District of manila.

Issues:

1. Are the votes of Mark Jimenez stray votes and should not be
counted?
2. Whether the petitioner as second places should be proclaimed
winner since the winner was disqualified?

Held:

1. There must be a final judgment disqualifying a candidate in

order that the votes of a disqualified candidate can be considered
“stray”. This final judgment must be rendered BEFORE THE
ELECTION. This was the ruling in the case of CODILLA VS.
DE VENECIA. Hence, when a candidate has not been
disqualified by final judgment during the election day he was
voted for, the votes cast in his favor cannot be declared stray. To
do so would amount to disenfranchising the electorate in whom
sovereignty resides. The reason behind this is that the people
voted for him bona fide and in the honest belief that the
candidate was then qualified to be the person to whom they
would entrust the exercise of the powers of government.
2. The subsequent disqualification of a candidate who obtained the
highest number of votes does not entitle the second placer to be
declared the winner. The said principle was laid down as early as
1912 and reiterated in the cases of LABO VS. COMELEC,
ABELLA VS. COMELEC and DOMINO VS. COMELEC.
 136

(Note, however, that if the

disqualification became
FINAL before election day
but still, the voters elected
him, said votes are
considered stray votes and
the “second placer” will be
declared the winner)

Section 7. The members of the House of

Representatives shall be elected for a term of
3 years which shall begin, unless otherwise
provided by law, at noon on the 30th day of
June next following their election.

No member of the House of

Representative shall serve for a period of
more than 3 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.

Section 8. Unless otherwise provided by law,

the regular election of the Senators and the
Members of the House of Representatives
shall be held on the second Monday of May.

a. On the manner of nomination and appointment of Sectoral

representatives to the Hose of Representatives.

Read: 1. Exec. Order No. 198, June 18, 1987

2.. DELES VS. COMMISSION ON APPOINTMENTS,
September 4, 1989

b. On gerrymandering

Read: CENIZA vs. COMELEC, 95 SCRA 763

Section 9. In case of vacancy in the Senate or

in the House of Representatives, a special
election may be called to fill such vacancy in
the manner prescribed by law, but the Senator
or Member of the House of representatives thus
elected shall serve only the unexpired term.

Read: 1. LOZADA vs. COMELEC, 120 SCRA 337

COMELEC cannot call a special election (for the legislative

districts whose Congressmen resigned or died while in office) without
a law passed by Congress appropriating funds for the said purpose.
 137

2. RA 6645-RE: Filling up of Congress Vacancy, December

28, 1987

5. Section 10. The salaries of Senators and

Members of the House of Representatives shall
be determined by law. No increase in said
compensation shall take effect until after the
expiration of the full term of all the members of
the Senate and the House of representatives
approving such increase.

a. How much is the present salary of the members of Congress?

P204,000.00 [P17,000.00 per month] as per Section 17, Art. XVIII of
the Constitution. The President’s salary is P300,000.00 per annum,
while the VP, Speaker, Senate President and Chief Justice is
P240,000.00 per annum. The Chairman of the Constitutional
Commissions salary is P204,000.00 and the members, P180,000.00 per
annum.

b. Read:

1. Section 17, Article 18) (P300,000.00 for the President;

P240,000.00 for VP, Senate President; Speaker; Chief
Justice; P204,000.00 for Senators, Representatives,
Chairmen of CC; P180,000.00 for members of the
Constitutional Commissions)
2. PHILCONSA VS. JIMENEZ, 15 SCRA 479;
3. LIGOT VS. MATHAY, 56 SCRA 823

Section 11. A Senator or Member of the House of

representatives shall, in all offenses punishable by not
more than 6 years imprisonment, be privileged from arrest
while the Congress is in session. No member shall be
questioned nor be held liable in any other place for any
debate in the Congress or in any committee thereof.

a. Privilege from arrest

Read: Martinez vs. Morfe,

b. Freedom of Speech and debate

Read:
1) OSMENA VS. PENDATUN, 109 Phil. 863
2) JIMENEZ VS. CABANGBANG, 17 SCRA 876

Section 12. All members of the Senate and the House of

Representatives shall, upon assumption of office, make a
full disclosure of their financial and business interests.
They shall notify the House concerned of a potential
conflict of interest that may arise from the filing of a
proposed legislation of which they are authors.

Section 13. No Senator or Member of the House of

Representatives may hold any other office or
employment in the government, or any subdivision,
 138

agency or instrumentality thereof, including

government-owned and 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.

Read:
1) ADAZA vs. PACANA, 135 SCRA 431

After taking his oath as a member of the Batasang

Pambansa (Congress), he is deemed to have resigned his
position as Governor of Misamis Oriental because as a
legislator, he is not allowed to hold any other office in the
government.

2) PUNZALAN vs. MENDOZA, 140 SCRA 153

A provincial governor who took his oath as a member of

the Batasang Pambansa as “appointed member” for being
a member of the Cabinet is allowed to return to his former
position as Governor if he resigns from the Batasan. This
is so because he was just an “appointed” member as
distinguished from the Adaza Case. (Note: It appears that
an appointed member of the Batasan is placed in a better
position than the elected members)

3) Compare with Section 10, Art. VIII of the 1973 Constitution

Section 14. No Senator or Member of the House of

Representatives may personally appear as counsel
before any court of justice or before the Electoral
Tribunals, or quasi-judicial bodies and other
administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract with,
or any franchise or special privilege granted by the
Government, or any subdivision, agency or
instrumentality thereof, including any government
owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any
matter before any office of the government for his
pecuniary benefit or where he may be called upon to
act on account of his office.

Read:
1) VILLEGAS vs. LEGASPI, 113 SCRA 39
2) PUYAT vs. DE GUZMAN, 113 SCRA 31

What could not be done directly could not likewise be

done indirectly. So a member of Congress who is a stockholder
of the corporation involved in a case is not allowed to appear
under the guise that he is appearing as such, not as counsel for
the corporation.
 139

Sections 15. The Congress shall convene once every year

on the 4th Monday of July for its regular season, unless a
different date is fixed by law, and shall continue to be in
session for such number of days as it may determine until
30 days before the opening of its next regular session,
exclusive of Saturdays, Sundays, and legal holidays. The
President may call a special session at any time.

Section 16. [1] The Senate shall elect its President

and the House of Representatives, its Speaker, by a
majority vote of all its respective members.

Each house shall choose such other officers as it

may deem necessary.

[2] A majority of each house shall constitute a

quorum to do business, but a smaller number may
adjourn from day to day and may compel the
attendance of absent members in such manner, and
under such penalties, as such House may provide.

[3] Each House may determine the rules of its

proceedings, punish its members for disorderly
behavior, and with the concurrence of 2/3 of all its
members, suspend or expel a Member. A penalty of
suspension, when imposed, shall mot exceed sixty days.

NOTE: In the cases of:

1. MIRIAM DEFENSOR SANTIAGO VS.

SANDIGANBAYAN; and
2. REP. CEFERINO PAREDES VS. SANDIGANBAYAN,

-the Supreme Court held that a member of Congress may

also be suspended by the Sandiganbayan in accordance
with Section 13 of RA 3019. This preventive suspension
applies to all public officials, including members of
Congress. Otherwise, the same will be considered class
legislation (there will be violation of the equal protection
clause) if Senators and Congressmen who commit the
same is exempt from the preventive suspension imposed
therein. But the Order of Suspension from the court shall
be given to the Speaker or Senate President for his/her
implementation.

Other than the foregoing, a member of Congress can be

suspended by the Congress itself.

[4] Each House shall keep a journal of its

proceedings, and from time to time publish the same,
excepting such parts as may, in its judgment, affect
national security; and the yeas and nays on any
question shall, at the request of one fifth of the
members present, be entered in the journal.
 140

Each House shall also keep a record of its

proceedings.

[Neither House during the sessions of the

Congress, shall without the consent of the other,
adjourn for more than three days, nor to any place than
that which the 2 Houses shall be sitting.

Read:
1) AVELINO vs. CUENCO, 83 Phil. 17, Read also the motion for
reconsideration dated March 14, 1949

2) Disciplinary measures on erring members

Read: OSMENA vs. PENDATUN, 109 Phil. 863

3) Dual purpose for keeping a journal

4) Journal entry and enrolled bill theories;

which is conclusive over the other?

Read:
U.S. vs. PONS, 34 Phil. 729

The journal prevails over extraneous evidence like accounts of

newspaper journalists and reporters as to what the proceedings
all about.

b. MABANAG vs. LOPEZ VITO, 78 Phil. 1

CASCO PHIL. VS. GIMENEZ, 7 SCRA 347

The enrolled bill prevails over the journal. If the enrolled

bill provides that it is urea formaldehyde is the one exempt from
tax, and not urea and formaldehyde which appears in the journal
which was really approved, the former prevails and only
CURATIVE LEGISLATION COULD CHANGE THE SAME,
NOT JUDICIAL LEGISLATION.

d. MORALES vs. SUBIDO, 27 Phil. 131

e. ASTORGA vs. VILLEGAS, 56 SCRA 714

(NOTE: The journal prevails over the enrolled bill on all

matters required to be entered in the journals, like yeas and nays
on the final reading of a bill or on any question at the request of
1/5 of the members present. )

5) Differentiate a "regular" from a "special" session.

11. Section 17. The Senate and the House of

Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
election contests relating to election, returns,
and qualifications of their respective
members. Each Electoral tribunal shall be
composed of 9 members, 3 of whom shall be
 141

justices of the Supreme Court to be designated

by the Chief justice, and the remaining six
shall be members of the Senate or House of
Representatives as the case may be, who shall
be chosen on the basis of proportional
representation from the political parties and
the parties or organizations registered under
the party-list system represented therein. The
senior justice in the Electoral tribunal shall be
its Chairman.

The HRET has jurisdiction over

qualifications of party-list groups.

DARYL GRACE ABAYON VS. HOUSE OF

REPRESENTATIVES ELECTORAL TRIBUNAL, ET AL.,
AND JOVITO PALPARAN VS. HRET, ET AL., G.R. NO.
189466, FEBRUARY 11, 2010

These two cases are about the authority of the House of

Representatives Electoral Tribunal (HRET) to pass upon the
eligibilities of the nominees of the party-list groups that won seats
in the lower house of Congress.

The Facts and the Case

In G.R. 189466, petitioner Daryl Grace J. Abayon is the first

nominee of the Aangat Tayo party-list organization that won a seat
in the House of Representatives during the 2007 elections.

Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz,

and Agustin C. Doroga, all registered voters, filed a petition for quo
warranto with respondent HRET against Aangat Tayo and its
nominee, petitioner Abayon, in HRET Case 07-041. They claimed
that Aangat Tayo was not eligible for a party-list seat in the House
of Representatives, since it did not represent the marginalized and
underrepresented sectors.

Respondent Lucaban and the others with him further pointed

out that petitioner Abayon herself was not qualified to sit in the
House as a party-list nominee since she did not belong to the
marginalized and underrepresented sectors, she being the wife of an
incumbent congressional district representative. She moreover lost
her bid as party-list representative of the party-list organization
called An Waray in the immediately preceding elections of May 10,
2004.

Petitioner Abayon countered that the Commission on

Elections (COMELEC) had already confirmed the status of Aangat
Tayo as a national multi-sectoral party-list organization representing
the workers, women, youth, urban poor, and elderly and that she
belonged to the women sector. Abayon also claimed that although
she was the second nominee of An Waray party-list organization
during the 2004 elections, she could not be regarded as having lost a
bid for an elective office.

Finally, petitioner Abayon pointed out that respondent HRET

had no jurisdiction over the petition for quo warranto since
respondent Lucaban and the others with him collaterally attacked
the registration of Aangat Tayo as a party-list organization, a matter
that fell within the jurisdiction of the COMELEC. It was Aangat
 142

Tayo that was taking a seat in the House of Representatives, and not
Abayon who was just its nominee. All questions involving her
eligibility as first nominee, said Abayon, were internal concerns of
Aangat Tayo.

On July 16, 2009 respondent HRET issued an order,

dismissing the petition as against Aangat Tayo but upholding its
jurisdiction over the qualifications of petitioner Abayon. The latter
moved for reconsideration but the HRET denied the same on
September 17, 2009, prompting Abayon to file the present petition
for special civil action of certiorari.

In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first

nominee of the Bantay party-list group that won a seat in the 2007
elections for the members of the House of Representatives.
Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M.
Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez
are members of some other party-list groups.

Shortly after the elections, respondent Lesaca and the others

with him filed with respondent HRET a petition for quo warranto
against Bantay and its nominee, petitioner Palparan, in HRET Case
07-040. Lesaca and the others alleged that Palparan was ineligible
to sit in the House of Representatives as party-list nominee because
he did not belong to the marginalized and underrepresented sectors
that Bantay represented, namely, the victims of communist rebels,
Civilian Armed Forces Geographical Units (CAFGUs), former
rebels, and security guards. Lesaca and the others said that
Palparan committed gross human rights violations against
marginalized and underrepresented sectors and organizations.

Petitioner Palparan countered that the HRET had no

jurisdiction over his person since it was actually the party-list
Bantay, not he, that was elected to and assumed membership in the
House of Representatives. Palparan claimed that he was just
Bantay’s nominee. Consequently, any question involving his
eligibility as first nominee was an internal concern of Bantay. Such
question must be brought, he said, before that party-list group, not
before the HRET.

On July 23, 2009 respondent HRET issued an order

dismissing the petition against Bantay for the reason that the issue
of the ineligibility or qualification of the party-list group fell within
the jurisdiction of the COMELEC pursuant to the Party-List System
Act. HRET, however, defended its jurisdiction over the question of
petitioner Palparan’s qualifications. Palparan moved for
reconsideration but the HRET denied it by a resolution dated
September 10, 2009, hence, the recourse to this Court through this
petition for special civil action of certiorari and prohibition.

The Issue Presented

The common issue presented in these two cases is:

Whether or not respondent HRET has jurisdiction over the

question of qualifications of petitioners Abayon and Palparan as
nominees of Aangat Tayo and Bantay party-list organizations,
respectively, who took the seats at the House of Representatives that
such organizations won in the 2007 elections.

The Court’s Ruling

Petitioners Abayon and Palparan have a common theory:

Republic Act (R.A.) 7941, the Party-List System Act, vests in the
 143

COMELEC the authority to determine which parties or

organizations have the qualifications to seek party-list seats in the
House of Representatives during the elections. Indeed, the HRET
dismissed the petitions for quo warranto filed with it insofar as they
sought the disqualifications of Aangat Tayo and Bantay. Since
petitioners Abayon and Palparan were not elected into office but
were chosen by their respective organizations under their internal
rules, the HRET has no jurisdiction to inquire into and adjudicate
their qualifications as nominees.

But, although it is the party-list organization that is voted for

in the elections, it is not the organization that sits as and becomes a
member of the House of Representatives. Section 5, Article VI of
the Constitution, identifies who the “members” of that House are:

Sec. 5. (1). The House of Representatives shall be

composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and
the Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations. (Underscoring
supplied)

Clearly, the members of the House of Representatives are of

two kinds: “members x x x who shall be elected from legislative
districts” and “those who x x x shall be elected through a party-
list system of registered national, regional, and sectoral parties
or organizations.” This means that, from the Constitution’s point
of view, it is the party-list representatives who are “elected” into
office, not their parties or organizations. These representatives are
elected, however, through that peculiar party-list system that the
Constitution authorized and that Congress by law established where
the voters cast their votes for the organizations or parties to which
such party-list representatives belong.

Once elected, both the district representatives and the party-

list representatives are treated in like manner. They have the same
deliberative rights, salaries, and emoluments. They can participate
in the making of laws that will directly benefit their legislative
districts or sectors. They are also subject to the same term
limitation of three years for a maximum of three consecutive terms.

It may not be amiss to point out that the Party-List System

Act itself recognizes party-list nominees as “members of the House
of Representatives,” thus:

Sec. 2. Declaration of Policy. - The State shall promote

proportional representation in the election of representatives to
the House of Representatives through a party-list system of
registered national, regional and sectoral parties or
organizations or coalitions thereof, which will enable Filipino
citizens belonging to the marginalized and underrepresented
sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House
of Representatives. Towards this end, the State shall develop
and guarantee a full, free and open party system in order to
attain the broadest possible representation of party, sectoral or
group interests in the House of Representatives by enhancing
their chances to compete for and win seats in the legislature,
 144

and shall provide the simplest scheme possible. (Underscoring

supplied)

As this Court also held in Bantay Republic Act or BA-RA

7941 v. Commission on Elections, a party-list representative is in
every sense “an elected member of the House of Representatives.”
Although the vote cast in a party-list election is a vote for a party,
such vote, in the end, would be a vote for its nominees, who, in
appropriate cases, would eventually sit in the House of
Representatives.

Both the Constitution and the Party-List System Act set the
qualifications and grounds for disqualification of party-list
nominees. Section 9 of R.A. 7941, echoing the Constitution, states:

Sec. 9. Qualification of Party-List Nominees. – No person

shall be nominated as party-list representative unless he is a
natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1)
year immediately preceding the day of the election, able to read
and write, bona fide member of the party or organization which
he seeks to represent for at least ninety (90) days preceding the
day of the election, and is at least twenty-five (25) years of age
on the day of the election.

In case of a nominee of the youth sector, he must at least

be twenty-five (25) but not more than thirty (30) years of age on
the day of the election. Any youth sectoral representative who
attains the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.

In the cases before the Court, those who challenged the

qualifications of petitioners Abayon and Palparan claim that the two
do not belong to the marginalized and underrepresented sectors that
they ought to represent. The Party-List System Act provides that a
nominee must be a “bona fide member of the party or organization
which he seeks to represent.”

It is for the HRET to interpret the meaning of this particular

qualification of a nominee—the need for him or her to be a bona
fide member or a representative of his party-list organization—in
the context of the facts that characterize petitioners Abayon and
Palparan’s relation to Aangat Tayo and Bantay, respectively, and the
marginalized and underrepresented interests that they presumably
embody.

Petitioners Abayon and Palparan of course point out that the

authority to determine the qualifications of a party-list nominee
belongs to the party or organization that nominated him. This is
true, initially. The right to examine the fitness of aspiring nominees
and, eventually, to choose five from among them after all belongs to
the party or organization that nominates them. But where an
allegation is made that the party or organization had chosen and
allowed a disqualified nominee to become its party-list
representative in the lower House and enjoy the secured tenure that
goes with the position, the resolution of the dispute is taken out of
its hand.

What is inevitable is that Section 17, Article VI of the

Constitution provides that the HRET shall be the sole judge of all
contests relating to, among other things, the qualifications of the
members of the House of Representatives. Since, as pointed out
 145

above, party-list nominees are “ elected members” of the House

of Representatives no less than the district representatives are,
the HRET has jurisdiction to hear and pass upon their
qualifications. By analogy with the cases of district
representatives, once the party or organization of the party-list
nominee has been proclaimed and the nominee has taken his oath
and assumed office as member of the House of Representatives, the
COMELEC’s jurisdiction over election contests relating to his
qualifications ends and the HRET’s own jurisdiction begins.

The Court holds that respondent HRET did not gravely abuse
its discretion when it dismissed the petitions for quo warranto
against Aangat Tayo party-list and Bantay party-list but upheld its
jurisdiction over the question of the qualifications of petitioners
Abayon and Palparan.

Jurisdiction of the Electoral Tribunals viz-a-viz the

COMELEC to determine the qualifications of Members of
Congress before and after proclamation.

JOCELYN SY LIMKAICHONG VS. COMELEC, G.R. No.

178831-32, April 1, 2009

Once a winning candidate has been proclaimed, taken his oath, and
assumed office as a Member of the House of Representatives, the
jurisdiction of the House of Representatives Electoral Tribunal begins
over election contests relating to his election, returns, and qualifications, and
mere allegation as to the invalidity of her proclamation does not divest
the Electoral Tribunal of its jurisdiction.

At the core of these contentious consolidated petitions are: (1) the

Joint Resolution168[1] of the Commission on Elections (COMELEC) Second
Division dated May 17, 2007, disqualifying Jocelyn D. Sy Limkaichong
(Limkaichong) from running as a congressional candidate for the First
District of Negros Oriental; (2) the COMELEC En Banc Resolution169[2]
dated June 29, 2007, affirming her disqualification; and (3) the COMELEC
En Banc Resolution170[3] dated August 16, 2007, resolving that all pending
incidents relating to her qualifications should now be determined by the
House of Representatives Electoral Tribunal (HRET).

The facts are uncontroverted. On March 26, 2007, Limkaichong filed

with the COMELEC her Certificate of Candidacy 171[4] (COC) for the position
of Representative of the First District of Negros Oriental.

In the following weeks, two (2) petitions for her disqualification were
instituted before the COMELEC by concerned citizens coming from her
locality. On April 4, 2007, Napoleon Camero, a registered voter of La
Libertad, Negros Oriental, filed the petition for her disqualification on the
ground that she lacked the citizenship requirement of a Member of the
House of Representatives. The petition, which was docketed as SPA No.

168[1]
Rollo (G.R. Nos. 178831-32), pp. 24-36.
169[2]
Id. at 53-66.
170[3]
Id. at 181-183.
171[4]
Id. at 74.
 146

(PES) A07-006,172[5] alleged that she is not a natural-born Filipino because

her parents were Chinese citizens at the time of her birth. On April 11,
2007, Renald F. Villando, also a registered voter of the same locality, filed
the second petition on the same ground of citizenship, docketed as SPA
(PES) No. A07-007.173[6] He claimed that when Limkaichong was born, her
parents were still Chinese citizens as the proceedings for the naturalization
of Julio Ong Sy, her father, never attained finality due to procedural and
substantial defects. Both petitions prayed for the cancellation of
Limkaichong's COC and for the COMELEC to strike out her name from the
list of qualified candidates for the Representative of the First District of
Negros Oriental.

In her separate Answers174[7] to the petitions, Limkaichong claimed that

she is a natural-born Filipino since she was born to a naturalized Filipino
father and a natural-born Filipino mother, who had reacquired her status
as such due to her husband's naturalization. Thus, at the time of her birth on
November 9, 1959, nineteen (19) days had already passed after her father
took his Oath of Allegiance on October 21, 1959 and after he was issued a
Certificate of Naturalization on the same day. She contended that the
COMELEC should dismiss the petitions outright for lack of cause of action.
Citing Salcedo II v. Commission on Elections, ] she averred that a petition
filed before an election, questioning the qualification of a candidate, should
be based on Section 78 in relation to Section 74 of the Omnibus Election
Code (OEC and not under Sections 68 and 74 thereof in relation to Section 1
Rule 25 of the COMELEC Rules of Procedure and Section 5 paragraph C
(3.a) of COMELEC Resolution No. 7800. She also contended that the
petitions were dismissible on the ground that they were in the nature of a
collateral attack on her and her father’s citizenships, in contravention of the
well-established rule that attack on one's citizenship may only be made
through a direct action for its nullity.

The COMELEC consolidated the two (2) petitions and re-docketed

them as SPA Nos. 07-247175[17] and 07-248,176[18] entitled IN THE MATTER
OF THE PETITION TO DISQUALIFY JOCELYN SY LIMKAICHONG
FROM HER CANDIDACY AS FIRST DISTRICT REPRESENTATIVE OF
NEGROS ORIENTAL (herein referred to as the disqualification cases),
which remained pending on May 14, 2007, when the National and Local
Elections were conducted.

After the casting, counting and canvassing of votes in the said

elections, Limkaichong emerged as the winner with 65,708 votes177[19] or by
a margin of 7,746 votes over another congressional candidate, Olivia
Paras178[20] (Paras), who obtained 57,962.

On May 15, 2007, Paras filed with the COMELEC a Very Urgent
Motion for Leave to Intervene and to Suspend the Proclamation of
Jocelyn Sy Limkaichong as Winning Candidate of the First District of
Negros Oriental.179[21]

172[5]
Id. at 75-77.
173[6]
Id. at 82-87.
174[7]
Id. at 100-144.
175[17]
Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong, Respondent.
176[18]
Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong, Respondent.
177[19]
Rollo (G.R. Nos. 178831-32), p. 152.
178[20]
Rollo (G.R. Nos. 179132-33), p. 103.
179[21]
Id. at 135-141.
 147

In a Joint Resolution180[22] dated May 17, 2007, the COMELEC Second

Division granted the petitions in the disqualification cases, disqualified
Limkaichong as a candidate for Representative of the First District of
Negros Oriental, directed the Provincial Supervisor of the COMELEC to
strike out her name from the list of eligible candidates, and for the
Provincial Board of Canvassers (PBOC) to suspend her proclamation.
The PBOC received the Joint Resolution of the COMELEC Second
Division on the evening of May 17, 2007, and accordingly suspended the
proclamation of Limkaichong.181[24]
The following day, or on May 18, 2007, the COMELEC En Banc
issued Resolution No. 8062182[25] adopting the policy-guidelines of not
suspending the proclamation of winning candidates with pending
disqualification cases which shall be without prejudice to the continuation
of the hearing and resolution of the involved cases.
On May 20, 2007, Limkaichong filed with the COMELEC a Motion
for Reconsideration of the Joint Resolution of May 17, 2007 and Urgent
Motion to Lift the Order Suspending Proclamation.183[26]
On May 22, 2007, Limkaichong filed another motion for the lifting of
the directive suspending her proclamation, insisting that she should be
proclaimed as the winner in the congressional race pursuant to COMELEC
Resolution No. 8062.184[27] On same date, Villando, one of the petitioners in
the disqualification cases, filed an Urgent Manifestation Clarifying
COMELEC Resolution No. 8062 with Motion,185[28] praying that the
COMELEC should not lift the suspension of Limkaichong’s proclamation.

On May 25, 2007, the PBOC, in compliance with COMELEC

Resolution No. 8062, reconvened and proclaimed Limkaichong as the duly
elected Member of the House of Representatives for the First District of
Negros Oriental.186[29]

Thereafter, or on May 30, 2007, Paras filed with the COMELEC a

Petition to Nullify and/or Annul the Proclamation of Jocelyn Sy-
Limkaichong as First District Representative of Negros Oriental in
relation to the May 17, 2007 Joint Resolution of the COMELEC
Second Division,187[30] stating, among others, that Limkaichong's
proclamation violated the earlier order of the COMELEC Second Division
suspending her proclamation. The petition, docketed as SPC No. 07-211,
was dismissed by the COMELEC First Division, 188[31] ratiocinating that the
disqualification cases were not yet final when Limkaichong was proclaimed.
180[22]
Rollo (G.R. Nos. 178831-32), pp. 24-35. The per curiam Joint Resolution was unanimously signed by Commissioners
Florentino A. Tuason, Jr. (ret.), Rene V. Sarmiento and Nicodemo T. Ferrer.
181[24]
Rollo (G.R. Nos. 179132-33), pp. 168-169, 201.
182[25]
Rollo (G.R. Nos. 178831-32), pp. 145-146. The resolution is entitled “In the Matter of Adopting the Following Policy-
Guidelines on: 1) the Proclamation of Winning Candidates with Pending Disqualification Cases; 2) Suspension of Canvassing and/or
Proclamation; and 3) Transfer of Canvassing Venue,” the pertinent portion of which is quoted as follows:
The Commission, in upholding the sovereign will of the people and in the interest of justice and fair play,
RESOLVED as it hereby RESOLVES, to adopt the following policy-guidelines in connection with the May 14,
2007 National and Local Elections:

1) No suspension of proclamation of winning candidates with pending disqualification cases

There shall be no suspension of proclamation of winning candidates with pending

disqualification cases before or after elections, involving issues of citizenship, non-residency, not
being a registered voter, nuisance candidate, and/or violation of the election laws under Section 68 of
the Omnibus Election Code, Fair Elections Act and other related election laws.

This policy however shall be without prejudice to the continuation of the hearing and
resolution of the involved cases.

183[26]
Rollo (G.R. No. 179132-33), pp. 37-52
184[27]
Id. at 147-149.
185[28]
Rollo (G.R. Nos. 179132-33), pp. 158-162.
186[29]
Rollo (G.R. Nos. 178831-32), p. 152.
187[30]
Rollo (G.R. No. 179132-33), pp. 165-192.
 148

Accordingly, her proclamation which was valid or legal, effectively divested

the COMELEC of its jurisdiction over the cases. The COMELEC First
Division explained its ruling in this wise:

The Commission has made its intention in issuing

Resolution No. 8062 very clear in that there shall be no
suspension of proclamation of winning candidates with
pending disqualification cases involving, among others, issues
of citizenship. As the disqualification cases involving
Limkaichong were still pending reconsideration by the en banc,
the underlying policy which gave rise to the issuance of the
Resolution: to respect the will of the Filipino electorate, applies
to the suspension of proclamation of the winning congressional
candidate for the First District of Negros Oriental.

WHEREFORE, the instant petition is dismissed.

SO ORDERED. (Emphasis ours)

Dissatisfied, Paras moved for the reconsideration of the above

Resolution.189[32]
Meanwhile, in a Resolution190[33] dated June 29, 2007, the COMELEC
En Banc, in an equally divided vote of 3:3, denied Limkaichong’s motion
for reconsideration of the Joint Resolution of the COMELEC Second
Division in the disqualification cases.
On July 3, 2007, Limkaichong filed in the disqualification cases
against her a Manifestation and Motion for Clarification and/or To
Declare the Petitions as Dismissed in Accordance with Section 6, Rule
18 of the COMELEC Rules of Procedure.191[35] She contended that, with
her proclamation, her having taken her oath of office and her assumption of
the position, the COMELEC was divested of jurisdiction to hear the
disqualification cases. She further contended that, following Section 6, 192[36]
Rule 18 of the COMELEC Rules of Procedure, the disqualification cases
would have to be reheard, and if on rehearing, no decision would be
reached, the action or proceedings should be dismissed, because the
COMELEC En Banc was equally divided in opinion when it resolved her
motion for reconsideration.

On an even date, Paras wrote the House of Representatives informing

it of the COMELEC En Banc Resolution dated June 29, 2007 upholding the
Joint Resolution of the COMELEC Second Division dated May 17, 2007,
which disqualified Limkaichong as a congressional candidate. 193[37]

In the interim, then Speaker of the House of Representatives Jose de

Venecia, Jr. (De Venecia) allowed Limkaichong to officially assume the
188[31]
Id at 328-334. The Resolution was penned by the late Commissioner Romeo A. Brawner and concurred in by
Commissioner Resurreccion Z. Borra (ret.).
189[32]
Id. at 215-236. The COMELEC First Division denied Paras’ motion on January 28, 2008 through an Omnibus Order. (Rollo
[G.R. Nos. 178831-32], pp. 463-467.)
190[33]
Rollo (G.R. Nos. 178831-32), pp. 53-66. In the per curiam Resolution, then COMELEC Chairman Benjamin A. Abalos, Sr.,
Commissioners Rene V. Sarmiento and Nicodemo T. Ferrer voted for the denial of Limkaichong’s motion. The late Commissioner
Romeo A. Brawner (also a former Presiding Justice of the Court of Appeals) wrote a dissenting opinion, which was concurred with
by retired Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr., to the effect that Limkaichong’s motion should be
dismissed by the COMELEC for lack of jurisdiction.
191[35]
Id. at 159-163.
192[36]
Section 6, Rule 18, COMELEC Rules of Procedure provides:
SEC. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall
be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand
affirmed; and in all incidental matters, the petition or motion shall be denied.
193[37]
Rollo (G.R. Nos. 179132-33), pp. 213-214.
 149

office as a Member of the House of Representatives on July 23, 2007, as

shown in the Journal of the House of Representatives. 194[38]

Despite Limkaichong’s repeated pleas for the resolution of her

manifestation and motion for clarification, 195[39] the COMELEC did not
resolve the same. Hence, on August 1, 2007, she filed with this Court a
Petition for Certiorari196[40] under Rule 65, in relation to Rule 64 of the
1997 Rules of Civil Procedure docketed as G.R. Nos. 178831-32 praying for
the annulment of the May 17, 2007 Joint Resolution of the COMELEC
Second Division and the June 29, 2007 Resolution of the COMELEC En
Banc in the disqualification cases for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. She averred that since she was
already proclaimed on May 25, 2007 as Representative of the First District
of Negros Oriental, had assumed office on June 30, 2007, and had started to
perform her duties and functions as such, the COMELEC had lost its
jurisdiction and it is now the HRET which has jurisdiction over any issue
involving her qualifications for the said office.

On August 16, 2007, the COMELEC En Banc ruled on Limkaichong’s

manifestation and motion for clarification, 197[41] with the following
disquisition:

In view of the proclamation of Limkaichong and her

subsequent assumption of office on June 30, 2007, this
Commission rules that all pending incidents relating to the
qualifications of Limkaichong should now be determined by
the House of Representatives Electoral Tribunal in
accordance with the above-quoted provision of the Constitution.

WHEREFORE, premises considered, this Commission

resolved, as it hereby resolves, that all pending incidents relating
to the qualifications of Jocelyn S. Limkaichong as Member of
the House of Representatives should now be determined by the
House of Representatives Electoral Tribunal.

SO ORDERED. (Emphasis ours)

On August 24, 2007, Louis Biraogo (Biraogo), as a citizen and a

taxpayer, filed with the Court a Petition for Prohibition and Injunction
with Preliminary Injunction and/or Temporary Restraining Order 198[42]
under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, docketed as
G.R. No. 179120, seeking to enjoin and permanently prohibit: (a) De
Venecia from allowing Limkaichong to sit in the House of Representatives
and participate in all its official activities; and (b) Limkaichong from
holding office as its Member.199[43]

Meanwhile, on August 28, 2007, Paras has instituted before the Court
a Petition for Quo Warranto, Prohibition and Mandamus with Prayer
for the Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction200[44] under Rule 65 of the 1997 Rules of Civil
194[38]
Id. at 238-256.
195[39]
Rollo (G.R. Nos. 178831-32), pp. 166-171. On July 5, 2007, Limkaichong filed an Urgent Motion to Resolve the
Manifestation and Motion for Clarification. On July 11, 2007, she filed a Second Motion to Resolve said manifestation and motion.
196[40]
Id. at 3-20.
197[41]
Id. at 181-183.
198[42]
Rollo (G.R. No. 179120), pp. 3-21.
199[43]
Id. at 19-20.
200[44]
Rollo (G.R. Nos. 179132-33), pp. 3-70.
 150

Procedure, docketed as G.R. Nos. 179132-33, seeking, among others, the

ouster of Limkaichong from the House of Representatives on account of her
disqualification and for the holding of special elections to fill the vacancy
created by such.201[45]

On even date, the COMELEC Second Division promulgated a

Resolution202[46] denying Villando's motion to suspend the proclamation of
Limkaichong, which denial was affirmed by the COMELEC En Banc in a
Resolution203[47] dated February 1, 2008.

On September 5, 2008, Villando also filed with this Court a Petition

for Certiorari and Injunction with Preliminary Injunction and
Temporary Restraining Order204[48] under Rule 65 of the 1997 Rules of
Civil Procedure, docketed as G.R. Nos. 179240-41, contending, among
others, that the COMELEC En Banc gravely abused its discretion in issuing
the August 16, 2007 Resolution205[49] because it still acted on Limchaikong’s
manifestation and motion for clarification, notwithstanding that the same
was not set for hearing and considering that its June 29, 2007 Resolution had
already become final and executory.
As the four (4) petitions are interrelated, the Court resolved to
consolidate them in its Resolutions dated September 4 and 11, 2007.

The Court heard the parties in oral argument on August 26, 2008,
during which the following issues were tackled:

1.Whether the proclamation of Limkaichong by the Provincial

Board of Canvassers of Negros Oriental is valid;

2.Whether said proclamation divested the Commission on

Elections of jurisdiction to resolve the issue of Limkaichong's
citizenship;

3.Whether the House of Representatives Electoral Tribunal shall

assume jurisdiction, in lieu of the COMELEC, over the issue
of Limkaichong's citizenship;

4. Whether the COMELEC Second Division and the COMELEC

En Banc correctly ruled that Limkaichong is disqualified from
running as a Member of the House of Representatives on the
ground that she is not a natural-born citizen;

5. Whether the COMELEC disqualification of Limkaichong is

final and executory; and,

6. Whether the Speaker of the House of Representatives may be

compelled to prohibit Limkaichong from assuming her duties
as a Member of the House of Representatives.

On same day, the Court required the parties to simultaneously file

within twenty (20) days their respective memoranda, after which the

201[45]
Id. at 69-70.
202[46]
Rollo (G.R. Nos. 178831-32), pp. 468-470.
203[47]
Id. at 471-481.
204[48]
Rollo (G.R. Nos. 179240-41), pp. 3-28.
205[49]
Supra note 41.
 151

petitions shall be deemed submitted for resolution, with or without the

memoranda.

Section 6, Article VI of the 1987 Philippine Constitution provides

for the qualification of a Member of the House of Representatives, thus:

Section 6. No person shall be a Member of the House of

Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-
five years of age, able to read and write, and, except the party-
list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election.

When Limkaichong filed her COC, she stated therein that she is a
natural-born Filipino citizen. It was not true, according to the petitioners in
the disqualification cases, because her father remained a Chinese citizen at
the time of her birth. The COMELEC Second Division has sided with
Camero and Villando, and disqualified Limkaichong to run as a
congressional candidate in the First District of Negros Oriental for having
failed to comply with the citizenship requirement. Accordingly, her
proclamation was ordered suspended notwithstanding that she obtained the
highest number of votes during the elections. Nonetheless, she was
proclaimed by the PBOC pursuant to the policy guidelines of COMELEC
En Banc Resolution No. 8062, and she has since assumed her position and
performed her functions as a Member of the House of Representatives.
I
Whether Limkaichong’s proclamation was valid.

The proclamation of Limkaichong was valid. The COMELEC Second

Division rendered its Joint Resolution dated May 17, 2007. On May 20,
2007, Limkaichong timely filed with the COMELEC En Banc her motion
for reconsideration as well as for the lifting of the incorporated directive
suspending her proclamation. The filing of the motion for
reconsideration effectively suspended the execution of the May 17, 2007
Joint Resolution.206[50] Since the execution of the May 17, 2007 Joint
Resolution was suspended, there was no impediment to the valid
proclamation of Limkaichong as the winner. Section 2, Rule 19 of the
COMELEC Rules of Procedure provides:
Sec. 2. Period for Filing Motions for Reconsideration. – A
motion to reconsider a decision, resolution, order or ruling of a
Division shall be filed within five (5) days from the
promulgation thereof. Such motion, if not pro forma, suspends
the execution for implementation of the decision, resolution,
order and ruling.

In G.R. Nos. 179132-33, Paras, however, maintained that

Limkaichong was a Chinese citizen who was disqualified to run as a
congressional candidate by way of a final judgment of the COMELEC.
With that, her proclamation was questionable and the same was done in
open defiance of the Joint Resolution dated May 17, 2007 of the COMELEC

206[50]
COMELEC Rules of Procedure, Rule 19, Sec. 2.
 152

Second Division. She also stressed that Limkaichong's proclamation was

procedurally defective, it appearing that one of the PBOC members was not
present on May 25, 2007, and that it took place in a restaurant and not at the
provincial capitol. Finally, she argued that Limkaichong’s proclamation
was void in accordance with the Court's pronouncement in the case of
Codilla v. De Venecia.207[51]

The Office of the Solicitor General (OSG) filed its Comment on the
petition of Paras, expressing its support for the position taken by the latter.

A perusal of the arguments advanced by Paras and the OSG does not
sway the Court to rule against the validity of Limkaichong’s proclamation.
No less than the COMELEC First Division has sustained the validity of her
proclamation when it dismissed, by way of a Resolution dated June 29,
2007, the petition filed by Paras to nullify the proclamation. Not only that.
The COMELEC First Division has also adopted Limkaichong’s argument
that following her valid proclamation, the COMELEC’s jurisdiction over the
disqualification cases has ceased and that the same should be threshed out in
the proper proceedings filed before the HRET. Notably, the dismissal of
Paras’ petition was affirmed by the COMELEC in its Omnibus Order dated
January 28, 2008.

In addition, the validity of Limkaichong's proclamation is in

accordance with COMELEC En Banc Resolution No. 8062. The
disqualification cases filed against her remained pending as a result of her
timely motion for reconsideration. Villando (in G.R. Nos. 179240-41),
however, maintained that Resolution No. 8062 is invalid; hence, it could not
be used as basis to validate Limkaichong's proclamation. He argued that it
must be published since it is a “policy-guideline” in the exercise of the
COMELEC’s rule-making power. As such, it cannot supersede the Joint
Resolution of the Second Division which was rendered pursuant to the
COMELEC’s quasi-judicial power.
His argument is specious. Resolution No. 8062 is not only a policy-
guideline. It is also an administrative interpretation of the two (2)
provisions of the 1987 Constitution, namely: (i) Section 17, 208[52] Article VI
(ii); Section 2(2),209[53] Article IX-C; Section 6210[54] of R.A. 6646; and

207[51]
442 Phil. 139 (2002).
208[52]
Section 17, Article VI, 1987 Constitution provides:
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, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under the party-list system represented
therein. The senior justice in the Electoral Tribunal shall be its Chairman.
209[53]
Section 2(2), Article IX-C, 1987 Constitution provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
xxxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective,
regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final
orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory,
and not appealable.
210[54]
Section 6, RA 6646, otherwise known as “An Act Introducing Additional Reforms in the Electoral System and for other
Purposes,” states:
SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.
 153

Sections 241211[55] and 243,212[56] Article XX of the OEC. As such, it does

not have to comply with the due process requirement. The term
“administrative” connotes or pertains to “administration, especially
management, as by managing or conducting, directing or superintending, the
execution, application, or conduct of persons or things.” It does not entail
an opportunity to be heard, the production and weighing of evidence, and a
decision or resolution thereon.213[57] This is to be distinguished from
“quasi-judicial function,” a term which applies, among others, to the action
or discretion of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw
conclusions from them, as a basis for their official action and to exercise
discretion of a judicial nature.214[58]

Resolution No. 8062 is a valid exercise of the COMELEC’s

constitutionally mandated power to promulgate its own rules of procedure
relative to the conduct of the elections. 215[59] In adopting such policy-
guidelines for the May 14, 2007 National and Local Elections, the
COMELEC had in mind the objective of upholding the sovereign will of the
people and in the interest of justice and fair play. Accordingly, those
candidates whose disqualification cases are still pending at the time of the
elections, should they obtain the highest number of votes from the
electorate, shall be proclaimed but that their proclamation shall be without
prejudice to the continuation of the hearing and resolution of the involved
cases. Whereas, in this case, the COMELEC Second Division having failed
to act on the disqualification cases against Limkaichong until after the
conduct of the elections, with her obtaining the highest number of votes
from the electorate, her proclamation was properly effected by the PBOC
pursuant to Resolution No. 8062.

The Court has held in the case of Planas v. COMELEC,216[60] that at the time
of the proclamation of Defensor, the respondent therein who garnered the
highest number of votes, the Division Resolution invalidating his certificate
of candidacy was not yet final. As such, his proclamation was valid or
legal, as he had at that point in time remained qualified. Limkaichong’s
situation is no different from that of Defensor, the former having been
disqualified by a Division Resolution on the basis of her not being a natural-
born Filipino citizen. When she was proclaimed by the PBOC, she was the
winner during the elections for obtaining the highest number of votes, and at

211[55]
Section 241 of the OEC provides:
SEC. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of
the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before
the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of election returns.
212[56]
Section 243 of the OEC provides:
SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be
raised in pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers.
(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this
Code.
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or
not authentic; and
(d) When the substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or candidates.
213[57]
Villarosa v. Commission on Elections and Atty. Dan Restor, 377 Phil. 497, 506 (1999), citing the Concurring Opinion of
Justice Antonio in University of Nueva Caceres v. Martinez, 56 SCRA 148 (1974).
214[58]
Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986).
215[59]
Section 3, Article IX-C, 1987 Constitution provides:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
216[60]
G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537 .
 154

that time, the Division Resolution disqualifying her has not yet became final
as a result of the motion for reconsideration.

II

Whether, upon Limkaichong's proclamation, the HRET, instead of the

COMELEC, should assume jurisdiction over the disqualification cases.

In her petition (G.R. Nos. 178831-32), Limkaichong argued that her

proclamation on May 25, 2007 by the PBOC divested the COMELEC of its
jurisdiction over all issues relating to her qualifications, and that jurisdiction
now lies with the HRET.

Biraogo, on the other hand, believed otherwise. He argued (in G.R.

No. 179120) that the issue concerning Limkaichong’s disqualification is still
within the exclusive jurisdiction of the COMELEC En Banc to resolve
because when Limkaichong was proclaimed on May 25, 2007, the matter
was still pending resolution before the COMELEC En Banc.

We do not agree. The Court has invariably held that once a winning
candidate has been proclaimed, taken his oath, and assumed office as a
Member of the House of Representatives, the COMELEC's jurisdiction
over election contests relating to his election, returns, and qualifications
ends, and the HRET's own jurisdiction begins.217[61] It follows then that
the proclamation of a winning candidate divests the COMELEC of its
jurisdiction over matters pending before it at the time of the proclamation.
The party questioning his qualification should now present his case in a
proper proceeding before the HRET, the constitutionally mandated tribunal
to hear and decide a case involving a Member of the House of
Representatives with respect to the latter's election, returns and
qualifications. The use of the word “sole” in Section 17, Article VI of the
Constitution and in Section 250218[62] of the OEC underscores the exclusivity
of the Electoral Tribunals' jurisdiction over election contests relating to its
members.219[63]

Section 17, Article VI of the 1987 Constitution provides:

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, who
shall be chosen on the basis of proportional representation from
the political parties and the parties or organizations registered
under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
217[61]
Vinzons-Chato v. Commission on Elections, G.R. No. 172131, April 2, 2007, 520 SCRA 166, 179, citing Aggabao v.
Commission on Elections, 449 SCRA 400, 404-405 (2005); Guerrero v. Commission on Elections, 391 Phil. 344, 352 (2000).
218[62]
SEC. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition contesting the
election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by
any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the
proclamation of the results of the election.
219[63]
Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul v. Commission on Elections, 371 Phil. 760,
766 (1999).
 155

Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as

amended, which states:

RULE 14. Jurisdiction. - The Tribunal is the sole judge of

all contests relating to the election, returns, and qualifications
of the Members of the House of Representatives.

The COMELEC En Banc, in its Resolution dated August 16, 2007, had
given paramount consideration to the two (2) aforementioned provisions
when it stated that:

In view of the proclamation of Limkaichong and her

subsequent assumption of office on June 30, 2007, this
Commission rules that all pending incidents relating to the
qualifications of Limkaichong should now be determined by
the House of Representatives Electoral Tribunal in
accordance with the above-quoted provision of the Constitution.
WHEREFORE, premises considered, this Commission
resolved, as it hereby resolves, that all pending incidents relating
to the qualifications of Jocelyn S. Limkaichong as Member of
the House of Representatives should now be determined by the
House of Representatives Electoral Tribunal.

SO ORDERED. (Emphasis supplied)

Worth citing also is the ratiocination of the COMELEC First Division

when it dismissed the petition of Paras seeking the nullity of Limkaichong's
proclamation, thus:

The present situation is similar not to the factual

circumstances of Codilla, which Paras invokes, but rather to that
in Planas which adheres to the general rule giving jurisdiction to
the House of Representatives Electoral Tribunal. As at the time
of Limkaichong's proclamation, her disqualification was not yet
final, her proclamation was valid or legal. This Commission no
longer has jurisdiction over the case. This, notwithstanding the
Second Division's directive suspending Limkaichong's
proclamation.

The Commission has made its intention in issuing

Resolution No. 8062 very clear in that there shall be no
suspension of proclamation of winning candidates with pending
disqualification cases, involving, among others, issues of
citizenship. As the disqualification cases involving
Limkaichong were still pending reconsideration by the En Banc,
the underlying policy which gave rise to the issuance of the
resolution: to respect the will of the Filipino electorate, applies to
 156

the suspension of proclamation of the winning Congressional

candidate for the First District of Negros Oriental.

WHEREFORE, the instant petition is DISMISSED.

SO ORDERED.

Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41)

steadfastly maintained that Limkaichong’s proclamation was tainted with
irregularity, which will effectively prevent the HRET from acquiring
jurisdiction.

The fact that the proclamation of the winning candidate, as in this

case, was alleged to have been tainted with irregularity does not divest the
HRET of its jurisdiction.220[64] The Court has shed light on this in the case
of Vinzons-Chato,221[65] to the effect that:

In the present case, it is not disputed that respondent Unico

has already been proclaimed and taken his oath of office as a
Member of the House of Representatives (Thirteenth Congress);
hence, the COMELEC correctly ruled that it had already lost
jurisdiction over petitioner Chato's petition. The issues raised
by petitioner Chato essentially relate to the canvassing of returns
and alleged invalidity of respondent Unico's proclamation.
These are matters that are best addressed to the sound judgment
and discretion of the HRET. Significantly, the allegation that
respondent Unico's proclamation is null and void does not divest
the HRET of its jurisdiction:

x x x [I]n an electoral contest where the

validity of the proclamation of a winning candidate
who has taken his oath of office and assumed his
post as congressman is raised, that issue is best
addressed to the HRET. The reason for this ruling is
self-evident, for it avoids duplicity of proceedings
and a clash of jurisdiction between constitutional
bodies, with due regard to the people's mandate.

Further, for the Court to take cognizance of petitioner

Chato's election protest against respondent Unico would be to
usurp the constitutionally mandated functions of the HRET.

In fine, any allegations as to the invalidity of the proclamation will not

prevent the HRET from assuming jurisdiction over all matters essential to a
member’s qualification to sit in the House of Representatives.

The 1998 HRET Rules, as amended, provide for the manner of filing
either an election protest or a petition for quo warranto against a Member of
the House of Representatives, to wit:
220[64]
Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338.
221[65]
Supra note 61, at 180.
 157

Rule 16. Election protest. -- A verified petition contesting

the election of any Member of the House of Representatives
shall be filed by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten (10)
days after the proclamation of the winner. The party filing the
protest shall be designated as the protestant while the adverse
party shall be known as the protestee.

xxx

Rule 17. Quo Warranto. -- A verified petition for quo

warranto contesting the election of a Member of the House of
Representatives on the ground of ineligibility or of disloyalty to
the Republic of the Philippines shall be filed by any voter within
ten (10) days after the proclamation of the winner. The party
filing the petition shall be designated as the petitioner while the
adverse party shall be known as the respondent.

xxx

Rule 19. Periods Non-Extendible. -- The ten-day period

mentioned in Rules 16 and 17 is jurisdictional and cannot be
extended.

Accordingly, after the proclamation of the winning candidate in the

congressional elections, the remedy of those who may assail one’s
eligibility/ineligibility/qualification/disqualification is to file before the
HRET a petition for an election protest, or a petition for quo warranto,
within the period provided by the HRET Rules. In Pangilinan v.
222[66]
Commission on Elections, we ruled that where the candidate has already
been proclaimed winner in the congressional elections, the remedy of
petitioner is to file an electoral protest with the Electoral Tribunal of the
House of Representatives.

The PBOC proclaimed Limkaichong as the winner on May 25, 2007.

Thus, petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) should
have filed either an election protest or petition for quo warranto within ten
days from May 25, 2007. But they did not. In fact, to date, no petition of
protest or petition for quo warranto has been filed with the HRET. Verily,
the ten-day prescriptive period for initiating a contest against Limkaichong
has long expired.
However, the said ten-day prescriptive period under the 1998 HRET
Rules does not apply to disqualification cases based on citizenship.
Under the 1987 Constitution, Members of the House of Representatives
must be natural-born citizens not only at the time of their election but
during their entire tenure. Being a continuing requirement, one who
assails a member's citizenship or lack of it may still question the same at any
time, the ten-day prescriptive period notwithstanding.

In Frivaldo v. Commission on Elections,223[67] the Court held that:

222[66]
G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44.
223[67]
G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied)
 158

The argument that the petition filed with the Commission

on Elections should be dismissed for tardiness is not well-taken.
The herein private respondents are seeking to prevent Frivaldo
from continuing to discharge his office as governor because he is
disqualified from doing so as a foreigner. Qualifications for
public office are continuing requirements and must be
possessed not only at the time of appointment or election or
assumption of office but during the officer’s entire tenure.
Once any of the required qualifications is lost, his title may
be seasonably challenged. If, say, a female legislator were to
marry a foreigner during her term and by her act or
omission acquires his nationality, would she have the right to
remain in office simply because the challenge to her title may
not longer be made within ten days from her proclamation? x
xx
This Court will not permit the anomaly of a person
sitting as provincial governor in this country while owing
exclusive allegiance to another country. The fact that he was
elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and
employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by
the electorate alone. The will of the people as expressed
through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in this case, that the
candidate was qualified. Obviously, this rule requires strict
application when the deficiency is lack of citizenship. If a
person seeks to serve in the Republic of the Philippines, he must
owe his total loyalty to this country alone, abjuring and
renouncing all fealty to any other state.

However, in assailing the citizenship of the father, the proper

proceeding should be in accordance with Section 18 of Commonwealth Act
No. 473 which provides that:
Sec. 18. Cancellation of Naturalization Certificate Issued:
- Upon motion made in the proper proceedings by the
Solicitor General or his representative, or by the proper
provincial fiscal, the competent judge may cancel the
naturalization certificate issued and its registration in the
Civil Register:

1. If it is shown that said naturalization certificate was

obtained fraudulently or illegally;
2. If the person naturalized shall, within five years next
following the issuance of said naturalization certificate,
return to his native country or to some foreign country and
establish his permanent residence there: Provided, That the
fact of the person naturalized remaining more than one
year in his native country or the country of his former
nationality, or two years in any other foreign country, shall
be considered as prima facie evidence of his intention of
taking up his permanent residence in the same:
 159

3. If the petition was made on an invalid declaration of

intention;
4. If it is shown that the minor children of the person
naturalized failed to graduate from a public or private high
schools recognized by the Office of Private Education
[now Bureau of Private Schools] of the Philippines, where
Philippine history, government or civics are taught as part
of the school curriculum, through the fault of their parents
either by neglecting to support them or by transferring
them to another school or schools. A certified copy of the
decree canceling the naturalization certificate shall be
forwarded by the Clerk of Court of the Department of
Interior [now Office of the President] and the Bureau of
Justice [now Office of the Solicitor General];
5. If it is shown that the naturalized citizen has allowed
himself to be used as a dummy in violation of the
constitutional or legal provisions requiring Philippine
citizenship as a requisite for the exercise, use or enjoyment
of a right, franchise or privilege. (Emphasis supplied)

Clearly, under law and jurisprudence, it is the State, through its

representatives designated by statute, that may question the illegally or
invalidly procured certificate of naturalization in the appropriate
denaturalization proceedings. It is plainly not a matter that may be raised by
private persons in an election case involving the naturalized citizen’s
descendant.

III
Whether the COMELEC Second Division and the COMELEC En Banc
correctly disqualified Limkaichong on the ground that she is not a
natural-born Filipino citizen.

In resolving the disqualification cases, the COMELEC Second

Division relied on the entries in the docket book of the OSG, 224[69] the only
remaining record of the naturalization proceedings, 225[70] and ruled on the
basis thereof that the naturalization proceedings of Julio Ong Sy,
Limkaichong’s father, in Special Case No. 1043, were null and void. The
COMELEC Second Division adopted Villando and Camero’s arguments that
the OSG was deprived of its participation in the said case for it was not
furnished copies of the following: (a) the July 9, 1957 Order of the Court of
First Instance (CFI) granting the petition for naturalization; and (b) the
September 21, 1959 Order of the CFI declaring Julio Ong Sy a Filipino
citizen. Thus, when the latter took his oath of allegiance on October 21,
1959, it was exactly 30 days after his declaration as a naturalized Filipino, or
one day short of the reglementary period required under Sections 11 and 12
of Commonwealth Act No. 473. Such defects were fatal to the
naturalization proceedings of Julio Ong Sy and prevented the same from
gaining finality. The COMELEC Second Division concluded that since
Julio Ong Sy did not acquire Philippine citizenship through the said
naturalization proceedings, it follows that Limkaichong remains a Chinese
national and is disqualified to run as candidate and be elected as a Member
of the House of Representatives.

224[69]
Rollo p. 97.
225[70]
Id. at 172 and 175.
 160

We cannot resolve the matter of Limkaichong’s citizenship as the same

should have been challenged in appropriate proceedings as earlier stated.

IV

Whether the COMELEC's disqualification of Limkaichong

is final and executory.

In resolving this issue, pertinent is the provision of Section 13(b), Rule

18 of the 1993 COMELEC Rules of Procedure:

Sec. 13. Finality of Decisions or Resolutions. – x x x

(b) In Special Actions and Special Cases, a decision or

resolution of the Commission en banc shall become final and
executory after five (5) days from its promulgation unless
restrained by the Supreme Court.

In his Memorandum dated June 27, 2008, Biraogo stated that the
Resolution of the COMELEC En Banc in the disqualification cases became
final and executory after five (5) days from its promulgation and that the
same was not restrained by this Court pursuant to Section 13(b), Rule 18 of
the 1993 COMELEC Rules of Procedure. He averred that since
Limkaichong received a copy of the COMELEC En Banc Resolution dated
June 29, 2007 on July 3, 2007, she had until July 8, 2007 within which to
obtain a restraining order from the Court to prevent the same from becoming
final and executory. However, she did not do anything to that effect.
Biraogo also averred that Limkaichong is guilty of forum shopping; hence,
her petition must be dismissed by the Court.

Instead of asking the Court for what Biraogo opined as a restraining

order, Limkaichong filed with this Court, on August 1, 2007, her petition for
certiorari assailing the said COMELEC En Banc Resolution pursuant to
Section 2,226[71] Rule 64, in relation to Rule 65, 1997 Rules of Civil
Procedure, postulating that she had thirty (30) days from July 4, 2007 within
which to file the petition, or until August 3, 2007. She cited Section 7,
Article IX of the 1987 Constitution, which prescribes the power of this
Court to review decisions of the COMELEC,227[72] thus:

SEC. 7. Each Commission shall decide by a majority vote

of all its Members any case or matter brought before it within
sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each

226[71]
Section 2. Mode of review. - A judgment or final order or resolution of the Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided.
227[72]
Soriano, Jr. v. Commission on Elections, G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 80, 107, citing Reyes v. RTC of
Oriental Mindoro, 313 Phil. 727, 734 (1995).
 161

Commission may be brought to the Supreme Court on certiorari

by the aggrieved party within thirty days from receipt of a copy
thereof.

In his Comment on the petition, Villando prayed for the outright

dismissal of Limkaichong’s petition as (a) it was filed beyond the
reglementary period; (b) Limkaichong engaged in prohibited forum
shopping; and (c) Limkaichong admitted that the issues raised have become
moot and academic. He also sought to declare Limkaichong in contempt of
court for forum shopping.

The COMELEC, through the OSG, also filed its Comment, praying for
the denial of Limkaichong's petition and its dismissal for being moot,
contending that: (a) the COMELEC En Banc Resolution dated August 16,
2007 has rendered the instant petition moot and academic; and (b)
Limkaichong knowingly and intentionally engaged in forum shopping. The
OSG argued that, without waiting for the resolution of her Motion for
Clarification and two (2) successive motions to resolve said motions which
are pending before the COMELEC En Banc, Limkaichong filed the present
petition to question the Joint Resolution dated May 17, 2007 of the
COMELEC Second Division, which issues were pending before the
COMELEC En Banc. Her act of seeking relief from this Court while there
were several other incidents pending before the COMELEC, the final
resolution in either one of which will amount to res judicata in the other,
clearly showed forum shopping on her part.

In her Reply to the above Comments, Limkaichong countered that she

did not engage in forum shopping, for had she waited for the COMELEC to
rule on her manifestation and other motions, it would have resulted in the
expiration of the reglementary period for filing a petition for certiorari
before the Court.

The May 17, 2007 Joint Resolution of the COMELEC Second

Division disqualifying Limkaichong and suspending her proclamation
cannot yet be implemented considering that she timely filed a motion for
reconsideration. Thus, pursuant to Section 13(c), Rule 18 and Section 2
Rule 19 of the COMELEC Rules of Procedure, the Joint Resolution has not
yet attained finality for it to be implemented.

Notably, the seeming impropriety of the Resolution of the COMELEC

En Banc dated June 29, 2007 has since been remedied by the promulgation
of its Resolution dated August 16, 2007, recognizing that it no longer has
jurisdiction over the disqualification cases following the valid proclamation
of Limkaichong and her assumption of office as a Member of the House of
Representatives.

V
Whether the Speaker of the House of Representatives may be compelled to
prohibit Limkaichong from assuming her duties as a Member of the
House of Representatives.
 162

Biraogo's contention was that De Venecia 228[73] should be stopped from

entering Limkaichong's name in the Roll of Members of the House of
Representatives because he has no power to allow an alien to sit and
continue to sit therein as it would amount to an unlawful exercise of his
legal authority. Moreover, Biraogo opposes Limkaichong’s assumption of
office in the House of Representatives since she is not qualified to sit
therein, being a Chinese citizen and, thus, disqualified by virtue of a final
and executory judgment of the COMELEC En Banc. He relied on the
COMELEC En Banc Resolution dated June 29, 2007, which affirmed the
COMELEC Second Division Joint Resolution dated May 17, 2007
disqualifying Limkaichong from holding public office. He contended that
the said Resolution dated June 29, 2007 is already final and executory;
hence, it should be respected pursuant to the principle of res judicata.

De Venecia, on the other hand, argued that he should not be faulted for
honoring the proclamation of Limkaichong, because it had the hallmarks of
regularity, and he had no power to exclude any Member of the House of
Representatives motu proprio. In their Comment on the petition,
respondents De Venecia, et al., contended that the enrollment of a Member
in the Roll of Members of the House of Representatives and his/her
recognition as such becomes the ministerial duty of the Secretary General
and the House of Representatives upon presentation by such Member of a
valid Certificate of Proclamation and Oath of Office.

Respondent Nograles, as De Venecia's, substitute, filed a

Memorandum dated July 16, 2008 stating that under the circumstances, the
House of Representatives, and its officials, are without recourse except to
honor the validity of the proclamation of Limkaichong until the same is
canceled, revoked or nullified, and to continue to recognize her as the duly
elected Representative of the First District of Negros Oriental until it is
ordered by this Court, as it was in Codilla, to recognize somebody else. He
went on to state that after assumption by the Member-elect, or having
acquired a presumptively valid title to the office, the House of
Representatives cannot, motu proprio, cancel, revoke, withdraw any
recognition given to a sitting Member or to “remove” his name from its roll,
as such would amount to a removal of such Member from his office without
due process of law. Verily, it is only after a determination by the
appropriate tribunal (as in this case, the HRET), pursuant to a final and
executory order, that the Member does not have a right to the office (i.e., not
being a duly elected Member), that the House of Representatives is directed
to exclude the said Member.

Their contentions are meritorious. The unseating of a Member of the

House of Representatives should be exercised with great caution and after
the proper proceedings for the ouster has been validly completed. For to
arbitrarily unseat someone, who obtained the highest number of votes in the
elections, and during the pendency of the proceedings determining one’s
qualification or disqualification, would amount to disenfranchising the
electorate in whom sovereignty resides. 229[74]

WHEREFORE, premises considered, the petition in G.R. Nos.

178831-32 is GRANTED and the Joint Resolution of the COMELEC

228[73]
When Speaker Jose De Venecia, Jr. was replaced by Speaker Prospero Nograles, petitioner Biraogo filed with the Court a
Respectful Manifestation with Motion to Replace Respondent Jose De Venecia, Jr. with Prospero C. Nograles, praying that the latter
will replace the former as party-respondent in G.R. No. 179120, which the Court granted in its Resolution dated April 1, 2008.
229[74]
See Codilla v. De Venecia, 442 Phil. 139 (2002).
 163

Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 is
REVERSED and SET ASIDE. All the other petitions (G.R. Nos. 179120,
179132-33, 179240-41) are hereby DISMISSED.

Read:
1) LAZATIN VS. COMELEC, G.R. No. 80007, January 25, 1988
2) FIRDAUSI ABBAS, ET AL. VS. THE SENATE ELECTORAL
TRIBUNAL, October 27, 1988
3)ENRILE VS. COMELEC & SANCHEZ; ENRILE VS. COMELEC
& RAZUL AND SANCHEZ VS. COMELEC, Aug. 12, 1987, 153 SCRA
57
4. BONDOC VS. HRET, supra

10.Section 18. There shall be a Commission on Appointments

consisting of the Senate President, as ex-oficio chairman, 12
senators and 12 members of the House of Representatives, as
the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the
parties or organizations registered under the party-list system
represented therein. The chairman of the commission shall not
vote, except in case of a tie. The commission shall act on all
appointments submitted to it within 30 session days of the
Congress from their submission. The Commission shall rule by
a majority of all the members.

Read:

1. RAUL DAZA VS. LUIS SINGSON, December 21, 1989

If the changes (which are permanent) in the political party

affiliations of the members of Congress is substantial so as
to dramatically decrease the membership of one party
while reducing the other, the number of representatives of
the different parties in the Commission on Appointments
may also be changed in proportion to their actual
memberships. (NOTE: In Cunanan vs. Tan, the
membership of the Senators was only “temporary” so as
not to result in the change of membership in the
Commission on Appointments)

2. GUINGONA VS. GONZALES, October 20, 1992

Since 12 Senators are members of the Commission on

Appointments, in addition to the Senate President as the
head thereof, every two (2) Senators are entitled to one (1)
representative in the Commission. Parties, however, are
not allowed to “round off” their members, I.e., 7 Senators
are entitled to 3 representatives in the Commission on
Appointments, not 4 since 7/2 is only 3.5.

Further, there is nothing in the Constitution which

requires that there must be 24 members of the Commission.
If the different parties do not coalesce, then the possibility
that the total number of Senators in the CA is less than 12
is indeed a reality. (Example: Lakas---13 Senators; LDP---
 164

11 Senators. In this case, Lakas is entitled to 6 members in

the CA (13/2= 6.5) while LBP would have 5 members
(11/2= 5.5)

3. GUINGONA S. GONZALES, March 1, 1993 (Resolution of the

Motion for Reconsideration of the October 20, 1992 Decision)

To be discussed later together with Sec. 16, Art. VII.

12-a. Section 19. The electoral tribunals and the Commission on

Appointments shall be constituted within 30 days after the Senate
and the House of Representatives shall have been organized with
the election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at
the call of its Chairman or a majority of all its members, to
discharge such powers and functions as are herein conferred upon
it.

13. Sec. 20. The records and books of accounts of the Congress
shall be preserved and be open to the public in accordance with
law, and such books shall be audited by the Commission on Audit
which shall publish annually an itemized list of amounts paid to
and expenses incurred for each member.

14. Section 21. The Senate or the House of Representatives or any

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

Read: 1) ARNAULT vs. NAZARENO, 87 Phil. 29

“A witness who refuses to answer a query by the

Committee may be detained during the term of the members
imposing said penalty but the detention should not be too long as
to violate the witness’ right to due process of law.”

Congress must have a duly published Rules;

otherwise, the Senate or the House of
Representatives could not investigate in aid
of legislation.

VIRGILLO GARCILLANO VS. HOUSE OF

REEPRESENTATIVES COMMITTEES ON PUBLIC
INFORMATION ET AL, December 23, 2008

More than three years ago, tapes ostensibly containing a wiretapped conve
purportedly between the President of the Philippines and a high-ranking official
Commission on Elections (COMELEC) surfaced. They captured unprecedented
attention and thrust the country into a controversy that placed the legitimacy of the
administration on the line, and resulted in the near-collapse of the Arroyo governmen
tapes, notoriously referred to as the “Hello Garci” tapes, allegedly contained the Pres
instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her
 165

results of the 2004 presidential elections. These recordings were to become the sub
heated legislative hearings conducted separately by committees of both Hou
Congress.230[1]

In the House of Representatives (House), on June 8, 2005, then Minority Floor

Francis G. Escudero delivered a privilege speech, “Tale of Two Tapes,” and set in m
congressional investigation jointly conducted by the Committees on Public Inform
Public Order and Safety, National Defense and Security, Information and Communi
Technology, and Suffrage and Electoral Reforms (respondent House Committees). Dur
inquiry, several versions of the wiretapped conversation emerged. But on July 5,
National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia
lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent
Committees seven alleged “original” tape recordings of the supposed three-hour
conversation. After prolonged and impassioned debate by the committee members
admissibility and authenticity of the recordings, the tapes were eventually played
chambers of the House.231[2]

On August 3, 2005, the respondent House Committees decided to suspend the h

indefinitely. Nevertheless, they decided to prepare committee reports based on th
recordings and the testimonies of the resource persons. 232[3]

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) file

this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Rest
Order and/or Writ of Preliminary Injunction 233[4] docketed as G.R. No. 170338. He pray
the respondent House Committees be restrained from using these tape recordings
“illegally obtained” wiretapped conversations in their committee reports and for any
purpose. He further implored that the said recordings and any reference thereto be o
stricken off the records of the inquiry, and the respondent House Committees dire
desist from further using the recordings in any of the House proceedings. 234[5]

Without reaching its denouement, the House discussion and debates on the
tapes” abruptly stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slum
issue with a privilege speech, “The Lighthouse That Brought Darkness.” In his dis
Senator Lacson promised to provide the public “the whole unvarnished truth — the
when’s, where’s, who’s and why’s” of the alleged wiretap, and sought an inquiry i
perceived willingness of telecommunications providers to participate in nefarious wiret
activities.

On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred

Senate Committee on National Defense and Security, chaired by Senator Rodolfo B
who had previously filed two bills 235[6] seeking to regulate the sale, purchase and
wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP
performing electoral duties.236[7]

In the Senate’s plenary session the following day, a lengthy debate ensued when S
Richard Gordon aired his concern on the possible transgression of Republic Act (R.A
4200237[8] if the body were to conduct a legislative inquiry on the matter. On August 28
Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her con
230[1]
Rollo (G.R. No. 179275), p. 168.
231[2]
Rollo (G.R. No. 170338), pp. 7-9.
232[3]
Id. at 9.
233[4]
Id. at 1-38.
234[5]
Id. at 36-38.
235[6]
Rollo (G.R. No. 179275), pp. 215-220.
236[7]
Id. at 169.
237[8]
An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communications and for Other Purposes.
 166

view that the Constitution absolutely bans the use, possession, replay or communication
contents of the “Hello Garci” tapes. However, she recommended a legislative invest
into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Po
other government entities in the alleged illegal wiretapping of public officials. 238[9]

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili,

justices of the Court of Appeals, filed before this Court a Petition for Prohibition with
for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunctio
docketed as G.R. No. 179275, seeking to bar the Senate from conducting its sch
legislative inquiry. They argued in the main that the intended legislative inquiry violate
No. 4200 and Section 3, Article III of the Constitution. 240[11]

As the Court did not issue an injunctive writ, the Senate proceeded with its
hearings on the “Hello Garci” tapes on September 7, 241[12] 17242[13] and October 1,243[14] 2

Intervening as respondents,244[15] Senators Aquilino Q. Pimentel, Jr., Benigno Noy

Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamb
Madrigal and Antonio F. Trillanes filed their Comment 245[16] on the petition on Septem
2007.

The Court subsequently heard the case on oral argument. 246[17]

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one
resource persons summoned by the Senate to appear and testify at its hearings, mo
intervene as petitioner in G.R. No. 179275.247[18]

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 17033
179275.248[19]

It may be noted that while both petitions involve the “Hello Garci” recording
have different objectives—the first is poised at preventing the playing of the tapes
House and their subsequent inclusion in the committee reports, and the second se
prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G
179275.

-I-

Before delving into the merits of the case, the Court shall first resolve the issue
parties’ standing, argued at length in their pleadings.

238[9]
Rollo (G.R. No. 179275), pp. 169-170.
239[10]
Id. at 3-17.
240[11]
Id. at 7-13.
241[12]
Id. at 24.
242[13]
Id. at 44.
243[14]
Memorandum of Respondents-Intervenors, p. 6.
244[15]
Rollo (G.R. No. 179275), pp. 68-70.
245[16]
Id. at 71-90.
246[17]
Id. at 62. The Court identified the following issues for discussion in the October 2, 2007 Oral Argument:
Whether the petitioners have locus standi to bring this suit.
Whether the Rules of Procedure of the Senate and the Senate Committees governing the conduct of inquiries in aid of legislation have been published, in
accordance with Section 21, Article VI of the Constitution. Corollarily:
Whether these Rules must be published by every Congress.
What mode/s of publication will comply with the constitutional requirement.
Whether the inquiry, which is centered on the so-called “Garci tapes,” violates Section 3, Article III of the Constitution and/or Republic Act
No. 4200. (Id. at 66.)
247[18]
Motion for Leave to Intervene and Petition-in-Intervention filed on October 26, 2007.
248[19]
Resolution dated November 20, 2007.
 167

In Tolentino v. COMELEC,249[20] we explained that “‘[l]egal standing’ or locus

refers to a personal and substantial interest in a case such that the party has sustained
sustain direct injury because of the challenged governmental act x x x,” thus,

generally, a party will be allowed to litigate only when (1) he can show that he has per
suffered some actual or threatened injury because of the allegedly illegal conduct
government; (2) the injury is fairly traceable to the challenged action; and (3) the in
likely to be redressed by a favorable action. 250[21]

The gist of the question of standing is whether a party has “alleged such a personal s
the outcome of the controversy as to assure that concrete adverseness which sharpe
presentation of issues upon which the court so largely depends for illumination of d
constitutional questions.”251[22]

However, considering that locus standi is a mere procedural technicality, the Co

recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arro
articulates that a “liberal policy has been observed, allowing ordinary citizens, mem
Congress, and civic organizations to prosecute actions involving the constitutiona
validity of laws, regulations and rulings.” 253[24] The fairly recent Chavez v. Gonzales254[
permitted a non-member of the broadcast media, who failed to allege a personal stake
outcome of the controversy, to challenge the acts of the Secretary of Justice and the N
Telecommunications Commission. The majority, in the said case, echoed the current
that “this Court has repeatedly and consistently refused to wield procedural barr
impediments to its addressing and resolving serious legal questions that greatly imp
public interest, in keeping with the Court’s duty under the 1987 Constitution to det
whether or not other branches of government have kept themselves within the limits
Constitution and the laws, and that they have not abused the discretion given to them.” 2

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the peti
alleging that he is the person alluded to in the “Hello Garci” tapes. Further, his was p
identified by the members of the respondent committees as one of the voices
recordings.256[27] Obviously, therefore, petitioner Garcillano stands to be directly injured
House committees’ actions and charges of electoral fraud. The Court recognizes his st
to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by a
that they are concerned citizens, taxpayers, and members of the IBP. They are of th
conviction that any attempt to use the “Hello Garci” tapes will further divide the c
They wish to see the legal and proper use of public funds that will necessarily be defra
the ensuing public hearings. They are worried by the continuous violation of the law
individual rights, and the blatant attempt to abuse constitutional processes through the c
of legislative inquiries purportedly in aid of legislation. 257[28]

Intervenor Sagge alleges violation of his right to due process considering tha
summoned to attend the Senate hearings without being apprised not only of his rights
through the publication of the Senate Rules of Procedure Governing Inquiries in
Legislation, but also of the intended legislation which underpins the investigation. He

249[20]
465 Phil. 385, 402 (2004).
250[21]
Tolentino v. Commission on Elections, id.
251[22]
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.
252[23]
G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160.
253[24]
David v. Macapagal-Arroyo, id. at 218.
254[25]
G.R. No. 168338, February 15, 2008, 545 SCRA 441.
255[26]
Id.
256[27]
Reply in G.R. No. 170338, pp. 36-37.
257[28]
Rollo (G.R. No. 179275), p. 4.
 168

intervenes as a taxpayer bewailing the useless and wasteful expenditure of public

involved in the conduct of the questioned hearings. 258[29]

Given that petitioners Ranada and Agcaoili allege an interest in the execution
laws and that intervenor Sagge asserts his constitutional right to due process, 259[30] they
the requisite personal stake in the outcome of the controversy by merely being citizens
Republic.

Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,26

find sufficient petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation t
continuous conduct by the Senate of the questioned legislative inquiry will nece
involve the expenditure of public funds.261[32] It should be noted that in Francisco
personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the
unconstitutional acts of the House of Representatives, yet the Court granted standing
petitioners therein for, as in this case, they invariably invoked the vindication of the
rights—as taxpayers, members of Congress, citizens, individually or in a class su
members of the bar and of the legal profession—which were also supposedly violated
therein assailed unconstitutional acts. 262[33]

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitione
intervenor Sagge advance constitutional issues which deserve the attention of this C
view of their seriousness, novelty and weight as precedents. The issues are of transcen
and paramount importance not only to the public but also to the Bench and the B
should be resolved for the guidance of all. 263[34]

Thus, in the exercise of its sound discretion and given the liberal attitude it has sh
prior cases climaxing in the more recent case of Chavez, the Court recognizes th
standing of petitioners Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and aca
Repeatedly stressed in our prior decisions is the principle that the exercise by this C
judicial power is limited to the determination and resolution of actual case
controversies.264[35] By actual cases, we mean existing conflicts appropriate or ripe for j
determination, not conjectural or anticipatory, for otherwise the decision of the Cou
amount to an advisory opinion. The power of judicial inquiry does not extend to hypot
questions because any attempt at abstraction could only lead to dialectics and barre
questions and to sterile conclusions unrelated to actualities. 265[36] Neither will the
determine a moot question in a case in which no practical relief can be granted.
becomes moot when its purpose has become stale. 266[37] It is unnecessary to indu
academic discussion of a case presenting a moot question as a judgment thereon canno
any practical legal effect or, in the nature of things, cannot be enforced. 267[38]

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforemen
the issuance of an injunctive writ to prohibit the respondent House Committees from p
the tape recordings and from including the same in their committee report. He likewis

258[29]
Petition-in-Intervention, p. 3.
259[30]
David v. Macapagal-Arroyo, supra note 23, at 223.
260[31]
460 Phil. 830 (2003).
261[32]
Francisco, Jr. v. The House of Representatives, id. at 897.
262[33]
Francisco, Jr. v. The House of Representatives, supra note 31, at 895.
263[34]
Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
264[35]
Dumlao v. COMELEC, 184 Phil. 369, 377 (1980). This case explains the standards that have to be followed in the exercise of the power of judicial
review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that
the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case.
265[36]
La Bugal-B’laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890 (2004).
266[37]
Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496 SCRA 13, 46.
267[38]
Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130, 138.
 169

that the said tapes be stricken off the records of the House proceedings. But the Cour
that the recordings were already played in the House and heard by its members. 268[39] T
also the widely publicized fact that the committee reports on the “Hello Garci” inquir
completed and submitted to the House in plenary by the respondent committees. 269[40]
been overtaken by these events, the Garcillano petition has to be dismissed for being
and academic. After all, prohibition is a preventive remedy to restrain the doing of
about to be done, and not intended to provide a remedy for an act already accomplished

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate
be allowed to continue with the conduct of the questioned legislative inquiry w
duly published rules of procedure, in clear derogation of the constitutional require

Section 21, Article VI of the 1987 Constitution explicitly provides that “[t]he Se
the House of Representatives, or any of its respective committees may conduct inquirie
of legislation in accordance with its duly published rules of procedure.” The requ
publication of the rules is intended to satisfy the basic requirements of due proce
Publication is indeed imperative, for it will be the height of injustice to punish or oth
burden a citizen for the transgression of a law or rule of which he had no notice what
not even a constructive one. 272[43] What constitutes publication is set forth in Article 2
Civil Code, which provides that “[l]aws shall take effect after 15 days followi
completion of their publication either in the Official Gazette, or in a newspaper of g
circulation in the Philippines.”273[44]

The respondents in G.R. No. 179275 admit in their pleadings and even on oral arg
that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation ha
published in newspapers of general circulation only in 1995 and in 2006. 274[45] With res
the present Senate of the 14th Congress, however, of which the term of half of its m
commenced on June 30, 2007, no effort was undertaken for the publication of thes
when they first opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v.
Committee on Accountability of Public Officers and Investigations, 275[46] we said:

Fourth, we find merit in the argument of the OSG that respondent Committees li
violated Section 21 of Article VI of the Constitution, requiring that the inquiry
accordance with the “duly published rules of procedure.” We quote the OSG’s explan

The phrase “duly published rules of procedure” requires the Senate of every Cong
publish its rules of procedure governing inquiries in aid of legislation because every Se
distinct from the one before it or after it. Since Senatorial elections are held every th
years for one-half of the Senate’s membership, the composition of the Senate also chan
the end of each term. Each Senate may thus enact a different set of rules as it may de
Not having published its Rules of Procedure, the subject hearings in aid of legi
conducted by the 14th Senate, are therefore, procedurally infirm.

268[39]
Rollo (G.R. No. 170338), p. 9.
269[40]
See news article “Separate findings, no closure” by Michael Lim Umbac published in The Philippine Daily Inquirer on March 29, 2006; News item
“5 House committees in ‘Garci’ probe file report on Monday” published in The Manila Bulletin on March 25, 2006.
270[41]
Simon, Jr. v. Commission on Human Rights, G.R. No. 100150, January 5, 1994, 229 SCRA 117, 135-136; Agustin v. De la Fuente, 84 Phil. 515, 517
(1949).
271[42]
Bernas, The 1987 Constitution of the Philippines, A Commentary, 1996 ed., p. 679.
272[43]
Tañada v. Tuvera, 220 Phil. 422, 432-433 (1985).
273[44]
As amended on June 18, 1987 by Executive Order No. 200 entitled “Providing for the Publication of Laws Either in the Official Gazette or in a
Newspaper of General Circulation in the Philippines as a Requirement for their Effectivity”.
274[45]
Rollo (G.R. No. 179275), p. 179; Memorandum of Respondents-Intervenors, pp. 9-10.
275[46]
G.R. No. 180643, March 25, 2008, 549 SCRA 77, 135-136.
 170

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforc

ruling with the following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing leg
body. The present Senate has twenty-four members, twelve of whom are elected ever
years for a term of six years each. Thus, the term of twelve Senators expires ever
years, leaving less than a majority of Senators to continue into the next Congres
1987 Constitution, like the 1935 Constitution, requires a majority of Senators to “cons
quorum to do business.” Applying the same reasoning in Arnault v. Nazareno, the
under the 1987 Constitution is not a continuing body because less than majority
Senators continue into the next Congress. The consequence is that the Rules of Pro
must be republished by the Senate after every expiry of the term of twelve Senators. 276[4

The subject was explained with greater lucidity in our Resolution277[48] (On the
for Reconsideration) in the same case, viz.:

On the nature of the Senate as a “continuing body,” this Court sees fit to issue a clarifi
Certainly, there is no debate that the Senate as an institution is “continuing,” as it
dissolved as an entity with each national election or change in the composition
members. However, in the conduct of its day-to-day business the Senate of each Co
acts separately and independently of the Senate of the Congress before it. The Rules
Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next
in the same status.

All pending matters and proceedings shall terminate upon the expiration of o
Congress, but may be taken by the succeeding Congress as if present for the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bi
even legislative investigations, of the Senate of a particular Congress are con
terminated upon the expiration of that Congress and it is merely optional on the Senate
succeeding Congress to take up such unfinished matters, not in the same status, bu
presented for the first time. The logic and practicality of such a rule is readily ap
considering that the Senate of the succeeding Congress (which will typically have a di
composition as that of the previous Congress) should not be bound by the ac
deliberations of the Senate of which they had no part. If the Senate is a continuing bod
with respect to the conduct of its business, then pending matters will not be d
terminated with the expiration of one Congress but will, as a matter of course, contin
the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite na
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the S
main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the pre
elections shall begin their term of office, the President may endorse the Rules
appropriate committee for amendment or revision.
276[47]
Id. at 297-298.
277[48]
Dated September 4, 2008.
 171

The Rules may also be amended by means of a motion which should be presented at le
day before its consideration, and the vote of the majority of the Senators present in the
shall be required for its approval.

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall rem
force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition
Senate after an election and the possibility of the amendment or revision of the Rules
start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended
valid from the date of their adoption until they are amended or repealed. Such langu
conspicuously absent from the Rules. The Rules simply state “(t)hese Rules shall take
seven (7) days after publication in two (2) newspapers of general circulation.” The latt
not explicitly provide for the continued effectivity of such rules until they are amen
repealed. In view of the difference in the language of the two sets of Senate rules, it can
presumed that the Rules (on legislative inquiries) would continue into the next Congres
Senate of the next Congress may easily adopt different rules for its legislative inquiries
come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inqu
conducted in accordance with the duly published rules of procedure is categorical
incumbent upon the Senate to publish the rules for its legislative inquiries in each Cong
otherwise make the published rules clearly state that the same shall be effective in subs
Congresses or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be ef
even in the next Congress, it could have easily adopted the same language it had use
main rules regarding effectivity.

Respondents justify their non-observance of the

constitutionally mandated publication by arguing that the
rules have never been amended since 1995 and, despite
that, they are published in booklet form available to
anyone for free, and accessible to the public at the Senate’s
internet web page.278[49]

The Court does not agree. The absence of any

amendment to the rules cannot justify the Senate’s defiance
of the clear and unambiguous language of Section 21,
Article VI of the Constitution. The organic law instructs,
without more, that the Senate or its committees may
conduct inquiries in aid of legislation only in accordance
with duly published rules of procedure, and does not make
any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to
publish the said rules prevails over any custom, practice or
tradition followed by the Senate.
278[49]
TSN, Oral Arguments, March 4, 2008, (G.R. No. 179275), pp. 413-414.
 172

Justice Carpio’s response to the same argument

raised by the respondents is illuminating:

The publication of the Rules of Procedure in

the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the
Tañada v. Tuvera ruling which requires publication
either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even
provide that the rules “shall take effect seven (7) days
after publication in two (2) newspapers of general
circulation,” precluding any other form of
publication. Publication in accordance with Tañada
is mandatory to comply with the due process
requirement because the Rules of Procedure put a
person’s liberty at risk. A person who violates the
Rules of Procedure could be arrested and detained by
the Senate.

The invocation by the respondents of the provisions

of R.A. No. 8792,279[50] otherwise known as the Electronic
Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect.
R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a
written document only for evidentiary purposes.280[51] In
other words, the law merely recognizes the admissibility in
evidence (for their being the original) of electronic data
messages and/or electronic documents.281[52] It does not
make the internet a medium for publishing laws, rules
and regulations.

Given this discussion, the respondent Senate

Committees, therefore, could not, in violation of the
279[50]
Entitled “An Act Providing for the Recognition and Use of Electronic Commercial and Non-Commercial Transactions and Documents, Penalties for
Unlawful Use Thereof and For Other Purposes,” approved on June 14, 2000.
280[51]
MCC Industrial Sales Corporation v. Ssangyong Corporation , G.R. No. 170633, October 15, 2007, 536 SCRA 408. (Emphasis
supplied.)
281[52]
Sections 6, 7 and 10 of R.A. No. 8792 read:
Sec. 6. Legal Recognition of Data Messages. - Information shall not be denied legal effect, validity or enforceability solely on the grounds that
it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message.
Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect, validity or enforceability as any other
document or legal writing, and –
(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains
its integrity and reliability, and can be authenticated so as to be usable for subsequent reference, in that –
(i) The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change,
or any change which arises in the normal course of communication, storage and display; and
(ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all the relevant
circumstances.
(b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences
for the document not being presented or retained in its original form.
(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document
if –
(i) There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form; and
(ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall
apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity.
For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws.
This Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules
relating to authentication and best evidence.
Sec. 10. Original Documents. – (1) Where the law requires information to be presented or retained in its original form, that requirement is
met by an electronic data message or electronic document if:
The integrity of the information from the time when it was first generated in its final form, as an electronic data
message or electronic document is shown by evidence aliunde or otherwise; and
Where it is required that information be presented, that the information is capable of being displayed to the person to
whom it is to be presented.
Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for
the information not being presented or retained in its original form.
For the purposes of subparagraph (a) of paragraph (1):
the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from
the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and
the standard of reliability required shall be assessed in the light of the purpose for which the information was
generated and in the light of all relevant circumstances.
 173

Constitution, use its unpublished rules in the legislative

inquiry subject of these consolidated cases. The conduct of
inquiries in aid of legislation by the Senate has to be
deferred until it shall have caused the publication of the
rules, because it can do so only “in accordance with its
duly published rules of procedure.”

Very recently, the Senate caused the publication of

the Senate Rules of Procedure Governing Inquiries in Aid
of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this
fact, the recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant petitions.
Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because
no published rules governed it, in clear contravention of
the Constitution.

With the foregoing disquisition, the Court finds it

unnecessary to discuss the other issues raised in the
consolidated petitions.

WHEREFORE, the petition in G.R. No. 170338 is

DISMISSED, and the petition in G.R. No. 179275 is
GRANTED. Let a writ of prohibition be issued enjoining
the Senate of the Republic of the Philippines and/or any of
its committees from conducting any inquiry in aid of
legislation centered on the “Hello Garci” tapes.

MAY THE SENATE

COMMITTEE ON FOREIGN
RELATIONS CONDUCT
INVESTIGATIONS IN AID OF
LEGISLATION FOR AN
ALLEGED ILLEGAL ACTS
COMMITTED BY POLICE
GENERALS IN MOSCOW,
RUSSIA WHICH IS OUTSIDE
THE PHILIPPINES?

SPOUSES PNP DIRECTOR ELISEO DE

LA PAZ & MARIA FE DE LA PAZ VS.
SENATE COMMITTEE ON FOREIGN
AFFAIRS, G.R. No. 184849, February 13,
2009

This is a Petition for Certiorari and Prohibition282[1] under

Rule 65 of the Rules of Court filed on October 28, 2008 by
petitioners-spouses General (Ret.) Eliseo D. dela Paz (Gen. Dela
Paz) and Mrs. Maria Fe C. dela Paz (Mrs. Dela Paz) assailing,

282[1]
Rollo, pp. 3-21.
 174

allegedly for having been rendered with grave abuse of

discretion amounting to lack or excess of jurisdiction, the orders
of respondent Senate Foreign Relations Committee (respondent
Committee), through its Chairperson, Senator Miriam Defensor-
Santiago (Senator Santiago), (1) denying petitioners’ Challenge
to Jurisdiction with Motion to Quash Subpoenae and (2)
commanding respondent Senate Sergeant-at-Arms Jose
Balajadia, Jr. (Balajadia) to immediately arrest petitioners during
the Senate committee hearing last October 23, 2008. The
petition thus prays that respondent Committee be enjoined from
conducting its hearings involving petitioners, and to enjoin
Balajadia from implementing the verbal arrest order against
them.

The antecedents are as follow –

On October 6, 2008, a Philippine delegation of eight (8)

senior Philippine National Police (PNP) officers arrived in
Moscow, Russia to attend the 77th General Assembly Session of
the International Criminal Police Organization (ICPO)-
INTERPOL in St. Petersburg from October 6-10, 2008. With the
delegation was Gen. Dela Paz, then comptroller and special
disbursing officer of the PNP. Gen. Dela Paz, however, was to
retire from the PNP on October 9, 2008.

On October 11, 2008, Gen. Dela Paz was apprehended by

the local authorities at the Moscow airport departure area for
failure to declare in written form the 105,000 euros
[approximately P6,930,000.00] found in his luggage. In
addition, he was also found to have in his possession 45,000
euros (roughly equivalent to P2,970,000.00).

Petitioners were detained in Moscow for questioning.

After a few days, Gen. Dela Paz and the PNP delegation were
allowed to return to the Philippines, but the Russian government
confiscated the euros.

On October 21, 2008, Gen. Dela Paz arrived in Manila, a

few days after Mrs. Dela Paz. Awaiting them were subpoenae
earlier issued by respondent Committee for the investigation it
was to conduct on the Moscow incident on October 23, 2008.

On October 23, 2008, respondent Committee held its first

hearing. Instead of attending the hearing, petitioners filed with
respondent Committee a pleading denominated Challenge to
Jurisdiction with Motion to Quash Subpoena.283[2] Senator
Santiago emphatically defended respondent Committee’s
jurisdiction and commanded Balajadia to arrest petitioners.

Hence, this Petition.

Petitioners argue that respondent Committee is devoid of

any jurisdiction to investigate the Moscow incident as the matter
does not involve state to state relations as provided in paragraph
283[2]
Id. at 28.
 175

12, Section 13, Rule 10 of the Senate Rules of Procedure (Senate

Rules). They further claim that respondent Committee violated
the same Senate Rules when it issued the warrant of arrest
without the required signatures of the majority of the members
of respondent Committee. They likewise assail the very same
Senate Rules because the same were not published as required
by the Constitution, and thus, cannot be used as the basis of any
investigation involving them relative to the Moscow incident.

Respondent Committee filed its Comment 284[3] on January

22, 2009.

The petition must inevitably fail.

First. Section 16(3), Article VI of the Philippine
Constitution states:

“Each House shall determine the rules of its

proceedings.”

This provision has been traditionally construed as a grant

of full discretionary authority to the Houses of Congress in the
formulation, adoption and promulgation of its own rules. As
such, the exercise of this power is generally exempt from judicial
supervision and interference, except on a clear showing of such
arbitrary and improvident use of the power as will constitute a
denial of due process.285[4]

The challenge to the jurisdiction of the Senate Foreign

Relations Committee, raised by petitioner in the case at bench, in
effect, asks this Court to inquire into a matter that is within the
full discretion of the Senate. The issue partakes of the nature of
a political question that, in Tañada v. Cuenco,286[5] was
characterized as a question which, under the Constitution, is 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. Further,
pursuant to this constitutional grant of virtually unrestricted
authority to determine its own rules, the Senate is at liberty to
alter or modify these rules at any time it may see fit, subject only
to the imperatives of quorum, voting and publication.

Thus, it is not for this Court to intervene in what is clearly

a question of policy, an issue dependent upon the wisdom, not
the legality, of the Senate’s action.

Second. Even if it is within our power to inquire into the

validity of the exercise of jurisdiction over the petitioners by the
Senate Foreign Relations Committee, we are convinced that
respondent Committee has acted within the proper sphere of its
authority.

284[3]
Id. at 126-137.
285[4]
See Morrero v. Bocar, 37 O.G. 445.
286[5]
100 Phil. 101 (1957).
 176

Paragraph 12, Section 13, Rule 10 of the Senate Rules

provides:

12) Committee on Foreign Relations. – Fifteen

(15) members. All matters relating to the relations
of the Philippines with other nations generally;
diplomatic and consular services; the Association of
Southeast Asian Nations; the United Nations
Organization and its agencies; multi-lateral
organizations, all international agreements,
obligations and contracts; and overseas Filipinos.

A reading of the above provision unmistakably shows that

the investigation of the Moscow incident involving petitioners is
well within the respondent Committee’s jurisdiction.

The Moscow incident could create ripples in the

relations between the Philippines and Russia. Gen. Dela Paz
went to Moscow in an official capacity, as a member of the
Philippine delegation to the INTERPOL Conference in St.
Petersburg, carrying a huge amount of “public” money
ostensibly to cover the expenses to be incurred by the delegation.
For his failure to comply with immigration and currency laws,
the Russian government confiscated the money in his possession
and detained him and other members of the delegation in
Moscow.

Furthermore, the matter affects Philippine international

obligations. We take judicial notice of the fact that the
Philippines is a state-party to the United Nations Convention
Against Corruption and the United Nations Convention Against
Transnational Organized Crime. The two conventions contain
provisions dealing with the movement of considerable
foreign currency across borders. 287[6] The Moscow incident
would reflect on our country’s compliance with the obligations
required of state-parties under these conventions. Thus, the
respondent Committee can properly inquire into this matter,
particularly as to the source and purpose of the funds discovered
in Moscow as this would involve the Philippines’ commitments
under these conventions.

Third. The Philippine Senate has decided that the

legislative inquiry will be jointly conducted by the respondent
Committee and the Senate Committee on Accountability of
Public Officers and Investigations (Blue Ribbon Committee).
287[6]
Art. 14(2) of the United Nations Convention Against Corruption provides –
State parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate
negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any
way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross
border transfer of substantial quantities of cash and appropriate negotiable instruments.
The United Nations Convention Against Transnational Organized Crime provides –
Art. 7(1), Each State Party:
(a) Shall institute a comprehensive domestic and regulatory and supervisory regime for banks and non-bank financial
institutions and, where appropriate, other bodies particularly susceptible to money-laundering, within its competence, in order to
deter and detect all forms of money-laundering, which regime shall emphasize requirements for customer identification, record-
keeping and the reporting of suspicious transactions;
Art. 7(2):
State Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate
negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any
way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-
border transfer of substantial quantities of cash and appropriate negotiable instruments. (Underscoring supplied.)
 177

Pursuant to paragraph 36, Section 13, Rule 10 of the

Senate Rules, the Blue Ribbon Committee may conduct
investigations on all matters relating to malfeasance,
misfeasance and nonfeasance in office by officers and employees
of the government, its branches, agencies, subdivisions and
instrumentalities, and on any matter of public interest on its own
initiative or brought to its attention by any of its members. It is,
thus, beyond cavil that the Blue Ribbon Committee can
investigate Gen. Dela Paz, a retired PNP general and member of
the official PNP delegation to the INTERPOL Conference in
Russia, who had with him millions which may have been
sourced from public funds.

Fourth. Subsequent to Senator Santiago’s verbal

command to Balajadia to arrest petitioners, the Philippine Senate
issued a formal written Order 288[7] of arrest, signed by ten (10)
senators, with the Senate President himself approving it, in
accordance with the Senate Rules.

Fifth. The Philippine Senate has already published its

Rules of Procedure Governing Inquiries in Aid of Legislation in
two newspapers of general circulation.289[8]

Sixth. The arrest order issued against the petitioners has

been rendered ineffectual. In the legislative inquiry held on
November 15, 2008, jointly by the respondent Committee and
the Senate Blue Ribbon Committee, Gen. Dela Paz voluntarily
appeared and answered the questions propounded by the
Committee members. Having submitted himself to the
jurisdiction of the Senate Committees, there was no longer any
necessity to implement the order of arrest. Furthermore, in the
same hearing, Senator Santiago granted the motion of Gen. Dela
Paz to dispense with the presence of Mrs. Dela Paz for
humanitarian considerations.290[9] Consequently, the order for her
arrest was effectively withdrawn.

WHEREFORE, the petition is DISMISSED for lack of

merit and for being moot and academic.

Power of Congress to conduct

investigation in aid of legislation;
distinguish said power with its
power to call department
secretaries, etc., during “question
hour”

SENATE OF THE PHILIPPINES,

represented by SENATE PRESIDENT
FRANKLIN DRILON, ET AL., VS. EXEC.
SEC. EDUARDO ERMITA, ET AL., G.R.
No. 16977, April 20, 2006
288[7]
Rollo, pp. 138-139.
289[8]
Publication was made in the October 31, 2008 issues of the Manila Daily Bulletin and the Malaya.
290[9]
Rollo, p. 143.
 178

CARPIO MORALES, J.:

The Facts:

In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees of
the executive department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole

issued invitations to various officials of the Executive Department for them to
appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the
Senate to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued

invitations dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco
V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in a public hearing
scheduled on September 28, 2005 on the following: (1) Privilege Speech of
Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled “Bunye has
Provided Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005”; (2) Privilege Speech of
Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled “The Philippines as
the Wire-Tapping Capital of the World”; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled “Clear and Present Danger”; (4)
Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal –
Resolution Directing the Committee on National Defense and Security to Conduct
an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the
Military in the So-called “Gloriagate Scandal”; and (5) Senate Resolution No. 295
filed by Senator Biazon – Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-
Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was

the AFP Chief of Staff, General Generoso S. Senga who, by letter dated
September 27, 2005, requested for its postponement “due to a pressing operational
situation that demands [his] utmost personal attention” while “some of the invited
AFP officers are currently attending to other urgent operational matters.”

On September 28, 2005, Senate President Franklin M. Drilon received from

Executive Secretary Eduardo R. Ermita a letter 291 dated September 27, 2005
“respectfully request[ing] for the postponement of the hearing [regarding the
291
Annex “B,” id. at 52.
 179

NorthRail project] to which various officials of the Executive Department have

been invited” in order to “afford said officials ample time and opportunity to study
and prepare for the various issues so that they may better enlighten the Senate
Committee on its investigation.”

Senate President Drilon, however, wrote292 Executive Secretary Ermita that

the Senators “are unable to accede to [his request]” as it “was sent belatedly” and
“[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week.”

Senate President Drilon likewise received on September 28, 2005 a letter

from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.

On September 28, 2005, the President of the Philippines issued E.O. 464,
“ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF
POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND
RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN
LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE
CONSTITUTION, AND FOR OTHER PURPOSES,” which, pursuant to Section
6 thereof, took effect immediately. The salient provisions of the Order are as
follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In

accordance with Article VI, Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers between co-equal branches
of the government, all heads of departments of the Executive Branch of the
government shall secure the consent of the President prior to appearing before
either House of Congress.

When the security of the State or the public interest so requires and the President
so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially
known to them by reason of their office and not made available to the public to
prejudice the public interest.

Executive privilege covers all confidential or classified information between the

President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the

public official covered by this executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
2. Military, diplomatic and other national security matters which in
the interest of national security should not be divulged (Almonte vs. Vasquez, G.R.
292
Annex “C,” id. at 53.
 180

No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998).
3. Information between inter-government agencies prior to the
conclusion of treaties and executive agreements (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
4. Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);
5. Matters affecting national security and public order (Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

1. Senior officials of executive departments who in the judgment of

the department heads are covered by the executive privilege;
2. Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of Staff are covered by
the executive privilege;
3. Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the judgment of the Chief
of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public

officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
A transparent government is one of the hallmarks of a truly republican state.
Even in the early history of republican thought, however, it has been recognized
that the head of government may keep certain information confidential in pursuit
of the public interest. Explaining the reason for vesting executive power in only
one magistrate, a distinguished delegate to the U.S. Constitutional Convention
said: “Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of
any greater number; and in proportion as the number is increased, these qualities
will be diminished.”

Considering that no member of the executive department would want to

appear in the above Senate investigations in aid of legislation by virtue of Proc.
No. 464, the petitioners filed the present petitions to declare the same
unconstitutional because the President abused her powers in issuing Executive
Order No. 464.

I S S U E S:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on

matters of public concern; and
 181

3. Whether respondents have committed grave abuse of discretion when they

implemented E.O. 464 prior to its publication in a newspaper of general
circulation.

H E L D:

Before proceeding to resolve the issue of the constitutionality of E.O. 464,

ascertainment of whether the requisites for a valid exercise of the Court’s power
of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging
the act must have standing to challenge the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.293

Invoking this Court’s ruling in National Economic Protectionism

Association v. Ongpin294 and Valmonte v. Philippine Charity Sweepstakes Office,295
respondents assert that to be considered a proper party, one must have a personal
and substantial interest in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464. 296

The Supreme Court, however, held that when suing as a citizen, the interest
of the petitioner in assailing the constitutionality of laws, presidential decrees,
orders, and other regulations, must be direct and personal. In Franciso v. House
of Representatives,297 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.

The Congress power of inquiry is expressly recognized in Section 21 of

Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its

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

The 1935 Constitution did not contain a similar provision. Nonetheless, in

Arnault v. Nazareno,298 a case decided in 1950 under that Constitution, the Court
already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous

purchase of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his refusal
to answer the questions of the senators on an important point, he was, by
293
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.
294
G.R. No. 67752, April 10, 1989, 171 SCRA 657.
295
G.R. No. 78716, September 22, 1987 (res).
296
Rollo (G.R. No. 169777), p. 117.
297
Supra note 39 at 136.
298
87 Phil. 29 (1950).
 182

resolution of the Senate, detained for contempt. Upholding the Senate’s power to
punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either

House of Congress with power to make investigations and exact testimony to the
end that it may exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be implied. In other
words, the power of inquiry – with process to enforce it – is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information – which is not
infrequently true – recourse must be had to others who do possess it. Experience
has shown that mere requests for such information are often unavailing, and also
that information which is volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.299 . . . (Emphasis and
underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate. 300 The matters which
may be a proper subject of legislation and those which may be a proper subject of
investigation are one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for investigation.

Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not extend
to executive officials who are the most familiar with and informed on executive
operations.

As discussed in Arnault, the power of inquiry, “with process to enforce it,”

is grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the disclosure thereof.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 301 the
inquiry itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred
in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need
for the inquiry. Given such statement in its invitations, along with the usual
indication of the subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the person invited
on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe

the legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of

299
Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).
300
Id. at 46.
301
G.R. 89914, Nov. 20, 1991, 203 SCRA 767.
 183

persons appearing in or affected by such inquiries be respected, an imposition that

obligates Congress to adhere to the guarantees in the Bill of Rights.

A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation.

Sections 21 and 22, therefore, while closely related and complementary to

each other, should not be considered as pertaining to the same power of Congress.
One specifically relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for legislation, while the
other pertains to the power to conduct a question hour, the objective of which is to
obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are

implementing the statutes which it has issued, its right to such information is not
as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is “in aid of legislation” under Section
21, the appearance is mandatory for the same reasons stated in Arnault.302

In fine, the oversight function of Congress may be facilitated by compulsory

process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the Constitutional
Commission.

Ultimately, the power of Congress to compel the appearance of executive

officials under Section 21 and the lack of it under Section 22 find their basis in the
principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate by
refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are
not exempt by the mere fact that they are department heads. Only one executive
official may be exempted from this power — the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of
impeachment.

Section 1, in view of its specific reference to Section 22 of Article VI of the

Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department heads
in the question hour is therefore CONSTITUTIONAL.

It is different insofar as Sections 2 and 3 are concerned. Section 3 of E.O.

464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The
enumeration is broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security officials who, in
the judgment of the heads of offices designated in the same section (i.e.
department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are “covered by the executive privilege.”
302
Supra.
 184

The enumeration also includes such other officers as may be determined by

the President. Given the title of Section 2 — “Nature, Scope and Coverage of
Executive Privilege” —, it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a
similar finding of coverage under executive privilege.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez
v. PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is

privileged information rooted in the separation of powers. The information does
not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by interested
parties, is essential to protect the independence of decision-making of those tasked
to exercise Presidential, Legislative and Judicial power. This is not the situation in
the instant case.303 (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section

2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of
providing precise and certain reasons for the claim, it merely invokes E.O. 464,
coupled with an announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

E.O 464 likewise violates the constitutional provision on the right to

information on matters of public concern. There are clear distinctions between the
right of Congress to information which underlies the power of inquiry and the
right of the people to information on matters of public concern. For one, the
demand of a citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a subpoena duces tecum
issued by Congress. Neither does the right to information grant a citizen the
power to exact testimony from government officials. These powers belong only to
Congress and not to an individual citizen.

To the extent that investigations in aid of legislation are generally conducted in

public, however, any executive issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information which they
can use in formulating their own opinions on the matter before Congress —
opinions which they can then communicate to their representatives and other
government officials through the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:
303
Supra note 82 at 189.
 185

It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be responsive to
the people’s will. Yet, this open dialogue can be effective only to the extent that
the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit. 304 (Emphasis and underscoring
supplied)

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

of E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislature’s power of inquiry.

The implementation of Proc. 464 before it was published in the Official

Gazette as illegal. Due process thus requires that the people should have been
apprised of this issuance before it was implemented. This is clear from the
doctrine laid down in the case of TANADA VS. TUVERA.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b)

and 3 of Executive Order No. 464 (series of 2005), “ENSURING OBSERVANCE
OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE
RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF
PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF
LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER
PURPOSES,” are declared VOID.

Bengzon, Jr. vs. Senate Blue Ribbon Committee, Nov. 20, 1991

This is a petition for prohibition with prayer for the issuance of a temporary
restraining order and/or injunctive relief, to enjoin the respondent Senate Blue
Ribbon committee from requiring the petitioners to testify and produce evidence
at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez
to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

Coming to the specific issues raised in this case, petitioners contend that (1)
the Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e.,
it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez
corporations is a "purely private transaction" which is beyond the power of the
Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their
right to due process.

The 1987 Constitution expressly recognizes the power of both houses of

Congress to conduct inquiries in aid of legislation. 1Thus, Section 21, Article VI
thereof provides:

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

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

The power of both houses of Congress to conduct inquiries in aid of

legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by
304
G.R. No. 74930, February 13, 1989, 170 SCRA 256.
 186

the afore-quoted provision of the Constitution. Thus, as provided therein, the

investigation must be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in or affected by such
inquiries shall be respected." It follows then that the rights of persons under the
Bill of Rights must be respected, including the right to due process and the right
not to be compelled to testify against one's self.

The power to conduct formal inquiries or investigations in specifically

provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation. Such inquiries may refer to the implementation or re-
examination of any law or in connection with any proposed legislation or the
formulation of future legislation. They may also extend to any and all matters
vested by the Constitution in Congress and/or in the Seante alone.

As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be

within the jurisdiction of the legislative body making it, must be material or
necessary to the exercise of a power in it vested by the Constitution, such as to
legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any
committee or committees any speech or resolution filed by any Senator which in
its judgment requires an appropriate inquiry in aid of legislation. In order
therefore to ascertain the character or nature of an inquiry, resort must be had to
the speech or resolution under which such an inquiry is proposed to be made.

A perusal of the speech of Senator Enrile reveals that he (Senator Enrile)

made a statement which was published in various newspapers on 2 September
1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group
of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator
Enrile on 4 September 1988 categorically denying that he had "taken over " the
FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself
categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31
August 1988 that there has been no takeover by him (Lopa); and that theses
repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as
they are malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate on
13 September 1988, to avail of the privilege hour, 17 so that he could repond to
the said Lopa letter, and also to vindicate his reputation as a Member of the Senate
of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges
that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and
"malicious." Thus, in his speech, 18 Senator Enrile said, among others, as follows:

It appeals, therefore, that the contemplated inquiry by respondent

Committee is not really "in aid of legislation" because it is not related to a purpose
within the jurisdiction of Congress, since the aim of the investigation is to find out
whether or not the relatives of the President or Mr. Ricardo Lopa had violated
Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that
appears more within the province of the courts rather than of the legislature.
Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the
pendency of this case. In John T. Watkins vs. United States, 20 it was held :

... The power of congress to conduct investigations in inherent in the legislative

process. That power is broad. it encompasses inquiries concerning the
administration of existing laws as well as proposed, or possibly needed statutes. It
 187

includes surveys of defects in our social, economic, or political system for the
purpose of enabling Congress to remedy them. It comprehends probes into
departments of the Federal Government to expose corruption, inefficiency or
waste. But broad as is this power of inquiry, it is not unlimited. There is no general
authority to expose the private affairs of individuals without justification in terms
of the functions of congress. This was freely conceded by Solicitor General in his
argument in this case. Nor is the Congress a law enforcement or trial agency.
These are functions of the executive and judicial departments of government. No
inquiry is an end in itself; it must be related to and in furtherance of a legitimate
task of Congress. Investigations conducted solely for the personal
aggrandizement of the investigators or to "punish" those investigated are
indefensible. (emphasis supplied)

Broad as it is, the power is not, however, without limitations. Since congress may
only investigate into those areas in which it may potentially legislate or
appropriate, it cannot inquire into matters which are within the exclusive province
of one of the other branches of the government. Lacking the judicial power given
to the Judiciary, it cannot inquire into mattes that are exclusively the concern of
the Judiciary. Neither can it supplant the Executive in what exclusively belongs to
the Executive. ...

Moreover, this right of the accused is extended to respondents in administrative

investigations but only if they partake of the nature of a criminal proceeding or
analogous to a criminal proceeding. In Galman vs. Pamaran, 26 the Court
reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right
of witnesses to invoke the right against self-incrimination not only in criminal
proceedings but also in all other types of suit

We do not here modify these doctrines. If we presently rule that petitioners may
not be compelled by the respondent Committee to appear, testify and produce
evidence before it, it is only because we hold that the questioned inquiry is not in
aid of legislation and, if pursued, would be violative of the principle of separation
of powers between the legislative and the judicial departments of government,
ordained by the Constitution.

Investigation in aid of legislation; Executive Privilege

ROMULO L. NERI VS. SENATE COMMITTEE ON ACCOUNTABILITY

OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE
ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, G.R. No. 180643, March 25, 2008

LEONARDO-DE CASTRO, J. (En Banc)

THE FACTS:

On April 21, 2007, the Department of Transportation and Communication

(DOTC) entered into a contract with Zhong Xing Telecommunications Equipment
(ZTE) for the supply of equipment and services for the National Broadband
Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16
Billion Pesos). The Project was to be financed by the People’s Republic of China.
In connection with this NBN Project, various Resolutions were introduced in the
Senate.
 188

At the same time, the investigation was claimed to be relevant to the

consideration of three (3) pending bills in the Senate.

Respondent Committees initiated the investigation by sending invitations to

certain personalities and cabinet officials involved in the NBN Project.
Petitioner was among those invited. He was summoned to appear and testify on
September 18, 20, and 26 and October 25, 2007. However, he attended only the
September 26 hearing, claiming he was “out of town” during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified
that several high executive officials and power brokers were using their influence
to push the approval of the NBN Project by the NEDA. It appeared that the
Project was initially approved as a Build-Operate-Transfer (BOT) project but, on
March 29, 2007, the NEDA acquiesced to convert it into a government-to-
government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees

for eleven (11) hours. He disclosed that then Commission on Elections
(COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange
for his approval of the NBN Project. He further narrated that he informed
President Arroyo about the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on what they discussed about the
NBN Project, petitioner refused to answer, invoking “executive privilege”. In
particular, he refused to answer the questions on (a) whether or not President
Arroyo followed up the NBN Project, 305[6] (b) whether or not she directed him to
prioritize it,306[7] and (c) whether or not she directed him to approve. 307[8]

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to

petitioner, requiring him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary

Eduardo R. Ermita requested respondent Committees to dispense with petitioner’s
testimony on the ground of executive privilege. The pertinent portion of the
letter reads:

With reference to the subpoena ad testificandum issued to Secretary Romulo

Neri to appear and testify again on 20 November 2007 before the Joint
Committees you chair, it will be recalled that Sec. Neri had already testified and
exhaustively discussed the ZTE / NBN project, including his conversation with
the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri
asked for time to consult with his superiors in line with the ruling of the Supreme
Court in Senate v. Ermita, 488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of

executive privilege on the following questions, to wit:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being
told about the alleged bribe?

305[6]
Transcript of the September 26, 2007 Hearing of the respondent Committees, pp.91-92.
306[7]
Id., pp. 114-115.
307[8]
Id., pp. 276-277.
 189

Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials
which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23
May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002).

The context in which executive privilege is being invoked is that the

information sought to be disclosed might impair our diplomatic as well as
economic relations with the People’s Republic of China.

In light of the above considerations, this Office is constrained to invoke the

settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly.

On November 20, 2007, petitioner did not appear before respondent

Committees. Thus, on November 22, 2007, the latter issued the show cause
Letter requiring him to explain why he should not be cited in contempt. The
Letter reads:

Since you have failed to appear in the said hearing, the Committees on
Accountability of Public Officers and Investigations (Blue Ribbon), Trade and
Commerce and National Defense and Security require you to show cause why you
should not be cited in contempt under Section 6, Article 6 of the Rules of the
Committee on Accountability of Public Officers and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees,

manifesting that it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be covered by
executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact, I have
cooperated with the task of the Senate in its inquiry in aid of legislation as shown
by my almost 11 hours stay during the hearing on 26 September 2007. During
said hearing, I answered all the questions that were asked of me, save for those
which I thought was covered by executive privilege, and which was confirmed by
the Executive Secretary in his Letter 15 November 2007. In good faith, after that
exhaustive testimony, I thought that what remained were only the three questions,
where the Executive Secretary claimed executive privilege. Hence, his request
that my presence be dispensed with.

In addition, petitioner submitted a letter prepared by his counsel, Atty.

Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-
appearance was upon the order of the President; and (2) his conversation with
President Arroyo dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and lenders in the
Philippines. The letter ended with a reiteration of petitioner’s request that he “be
furnished in advance” as to what else he needs to clarify so that he may
adequately prepare for the hearing.

On December 7, 2007, petitioner filed with this Court the

present petition for certiorari assailing the show cause Letter dated
November 22, 2007.
 190

Respondent Committees found petitioner’s explanations

unsatisfactory. Without responding to his request for advance notice
of the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees
and ordering his arrest and detention at the Office of the Senate
Sergeant-At-Arms until such time that he would appear and give his
testimony. The said Order states:

ORDER

For failure to appear and testify in the Committee’s

hearing on Tuesday, September 18, 2007; Thursday,
September 20, 2007; Thursday, October 25, 2007; and
Tuesday, November 20, 2007, despite personal notice and
Subpoenas Ad Testificandum sent to and received by him,
which thereby delays, impedes and obstructs, as it has in
fact delayed, impeded and obstructed the inquiry into the
subject reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt
(Neri letter of 29 November 2007), herein attached)
ROMULO L. NERI is hereby cited in contempt of this
(sic) Committees and ordered arrested and detained in
the Office of the Senate Sergeant-At-Arms until such
time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out

and implement this Order and make a return hereof within
twenty four (24) hours from its enforcement.

On the same date, petitioner moved for the reconsideration of the

above Order.308[9] He insisted that he has not shown “any contemptible
conduct worthy of contempt and arrest.” He emphasized his
willingness to testify on new matters, however, respondent
Committees did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he filed on
December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the show cause Letter “through the
issuance of declaration of contempt” and arrest.

In view of respondent Committees’ issuance of the contempt

Order, petitioner filed on February 1, 2008 a Supplemental Petition
for Certiorari (With Urgent Application for TRO/Preliminary
Injunction), seeking to restrain the implementation of the said
contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order

(a) enjoining respondent Committees from implementing their
contempt Order, (b) requiring the parties to observe the status quo
prevailing prior to the issuance of the assailed order, and (c)
requiring respondent Committees to file their comment.

Petitioner contends that respondent Committees’ show cause

Letter and contempt Order were issued with grave abuse of
308 [9]
See Letter dated January 30, 2008.
 191

discretion amounting to lack or excess of jurisdiction. He stresses

that his conversations with President Arroyo are “candid discussions
meant to explore options in making policy decisions.” According to
him, these discussions “dwelt on the impact of the bribery scandal
involving high government officials on the country’s diplomatic
relations and economic and military affairs and the possible loss of
confidence of foreign investors and lenders in the Philippines.” He
also emphasizes that his claim of executive privilege is upon the order
of the President and within the parameters laid down in Senate v.
Ermita309[10] and United States v. Reynolds.310[11] Lastly, he argues that
he is precluded from disclosing communications made to him in
official confidence under Section 7 311[12] of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for
Public Officials and Employees, and Section 24312[13] (e) of Rule 130 of
the Rules of Court.

Respondent Committees assert the contrary. They argue that

(1) petitioner’s testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their
authority to order petitioner’s arrest; and (4) petitioner has not come to
court with clean hands.

I S S U E S:

1. What communications between the President and

petitioner Neri are covered by the principle of
‘executive privilege’?

1.a Did Executive Secretary Ermita correctly invoke the

principle of executive privilege, by order of the
President, to cover (i) conversations of
the President in the exercise of her executive and
policy decision-making and (ii) information, which
might impair our diplomatic as well as economic
relations with the People’s Republic of China?

1.b. Did petitioner Neri correctly invoke executive

privilege to avoid testifying on his conversations
with the President on the NBN contract on his
assertions that the said conversations “dealt with
delicate and sensitive national security and
diplomatic matters relating to the impact of
bribery scandal involving high government
officials and the possible loss of confidence of
foreign investors and lenders in the Philippines” x

309 [10]
488 SCRA 1 (2006).
310 [11]
345 U.S. 1 (1953).
311[12]
Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official
and employee and are hereby declared to be unlawful: x x x
(c) Disclosure and/or misuse of confidential information. -
Public officials and employees shall not use or divulge, confidential or classified information officially known to them
by reason of their office and not made available to the public, either:
(1) To further their private interests, or give undue advantage to anyone; or
(2) To prejudice the public interest.
312[13]
SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters
learned in confidence in the following cases. (e) A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure.
 192

x x within the principles laid down in Senate v.

Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case

violate the following provisions of the Constitution:

Sec. 28, Art. II (Full public disclosure of all

transactions involving public interest)

Sec. 7, Art. III (The right of the people to

information on matters of public concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the
laws be faithfully executed)

and the due process clause and the principle of

separation of powers?

2. What is the proper procedure to be followed in invoking

executive privilege?

3. Did the Senate Committees gravely abuse their

discretion in ordering the arrest of petitioner for non-
compliance with the subpoena?

H E L D:

At the core of this controversy are the two (2) crucial queries, to
wit:

First, are the communications elicited by the subject three (3)

questions covered by executive privilege?

And second, did respondent Committees commit grave abuse of

discretion in issuing the contempt Order?

There is merit in the petition.

At the outset, a glimpse at the landmark case of Senate v.

Ermita313[18] becomes imperative. Senate draws in bold strokes the
distinction between the legislative and oversight powers of the
Congress, as embodied under Sections 21 and 22, respectively, of
Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of

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

SECTION 22. The heads of department may upon

313 [18]
Supra.
 193

their own initiative, with the consent of the President, or

upon the request of either House, or as the rules of each
House shall provide, appear before and be heard by such
House on any matter pertaining to their departments.
Written questions shall be submitted to the President of the
Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but
may cover matters related thereto. When the security of the
state or the public interest so requires and the President so
states in writing, the appearance shall be conducted in
executive session.

Senate cautions that while the above provisions are closely

related and complementary to each other, they should not be
considered as pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of legislation. Its aim
is to elicit information that may be used for legislation. On the other
hand, Section 22 pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress’
oversight function.314[19] Simply stated, while both powers allow
Congress or any of its committees to conduct inquiry, their objectives
are different.

This distinction gives birth to another distinction with regard to

the use of compulsory process. Unlike in Section 21, Congress cannot
compel the appearance of executive officials under Section 22. The
Court’s pronouncement in Senate v. Ermita315[20] is clear:

When Congress merely seeks to be informed on how

department heads are implementing the statutes which it
has issued, its right to such information is not as imperative
as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance
as a matter of duty. In such instances, Section 22, in
keeping with the separation of powers, states that Congress
may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is ‘in
aid of legislation’ under Section 21, the appearance is
mandatory for the same reasons stated in Arnault.

The Communications Elicited by the Three

(3) Questions are Covered by Executive
Privilege

We start with the basic premises where the parties have

conceded.

The power of Congress to conduct inquiries in aid of legislation

is broad. This is based on the proposition that a legislative body
cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or
314 [19]
Ibid.
315 [20]
Ibid.
 194

change.316[21] Inevitably, adjunct thereto is the compulsory process to

enforce it. But, the power, broad as it is, has limitations. To be valid,
it is imperative that it is done in accordance with the Senate or House
duly published rules of procedure and that the rights of the persons
appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way
for them to be exempted is through a valid claim of executive
privilege.317[22] This directs us to the consideration of the question -- is
there a recognized claim of executive privilege despite the
revocation of E.O. 464?

A- There is a Recognized Claim

of Executive Privilege Despite
the
Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O.

464 does not in any way diminish our concept of executive privilege.
This is because this concept has Constitutional underpinnings. Unlike
the United States which has further accorded the concept with
statutory status by enacting the Freedom of Information Act318[23] and
the Federal Advisory Committee Act,319[24] the Philippines has
retained its constitutional origination, occasionally interpreted only by
this Court in various cases. The most recent of these is the case of
Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note
that Executive Ermita’s Letter dated November 15, 2007 limits its
bases for the claim of executive privilege to Senate v. Ermita,
Almonte v. Vasquez,320[25] and Chavez v. PEA.321[26] There was never a
mention of E.O. 464.

While these cases, especially Senate v. Ermita,322[27] have

comprehensively discussed the concept of executive privilege, we
deem it imperative to explore it once more in view of the clamor for
this Court to clearly define the communications covered by executive
privilege.

The Nixon and post-Watergate cases established the broad

contours of the presidential communications privilege.323[28] In
324[29]
United States v. Nixon, the U.S. Court recognized a great public
interest in preserving “the confidentiality of conversations that take
place in the President’s performance of his official duties.” It thus
considered presidential communications as “presumptively
privileged.” Apparently, the presumption is founded on the
“President’s generalized interest in confidentiality.” The privilege
is said to be necessary to guarantee the candor of presidential advisors
and to provide “the President and those who assist him… with
freedom to explore alternatives in the process of shaping policies
316 [21]
Arnault v. Nazareno, 87 Phil 32 (1950)
317 [22]
Senate v. Ermita, p. 58.
318[23]
5 U.S. C. § 552
319 [24]
51 U.S. C. app.
320[25]
433 Phil. 506 (2002).
321 [26]
G.R. No. 130716, December 9, 1998, (360 SCRA 132 ).
322[27]
Supra.
323 [28]
CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent
Developments at p. 2.
324[29]
418 U.S. 683.
 195

and making decisions and to do so in a way many would be

unwilling to express except privately.”

In In Re: Sealed Case,325[30] the U.S. Court of Appeals delved

deeper. It ruled that there are two (2) kinds of executive privilege;
one is the presidential communications privilege and, the other is
the deliberative process privilege. The former pertains to
“communications, documents or other materials that reflect
presidential decision-making and deliberations and that the
President believes should remain confidential.” The latter includes
‘advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated.”

Accordingly, they are characterized by marked distinctions.

Presidential communications privilege applies to decision-making
of the President while, the deliberative process privilege, to
decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President’s
unique constitutional role; the second on common law
privilege. Unlike the deliberative process privilege, the
presidential communications privilege applies to documents in
their entirety, and covers final and post-decisional materials as
well as pre-deliberative ones326[31] As a consequence, congressional
or judicial negation of the presidential communications privilege is
always subject to greater scrutiny than denial of the deliberative
process privilege.

Turning on who are the officials covered by the presidential

communications privilege, In Re: Sealed Case confines the
privilege only to White House Staff that has “operational proximity” to
direct presidential decision-making. Thus, the privilege is meant to
encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential and
non-delegable Presidential power,” such as commander-in-chief
power, appointment and removal power, the power to grant pardons
and reprieves, the sole-authority to receive ambassadors and other
public officers, the power to negotiate treaties, etc. 327[32]

Majority of the above jurisprudence have found their way in our

jurisdiction. In Chavez v. PCGG328[38], this Court held that there is a
“governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other security matters.” In
Chavez v. PEA,329[39] there is also a recognition of the confidentiality of
Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. In Senate v. Ermita, the concept of
presidential communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of

executive privilege is highly recognized in cases where the subject of
inquiry relates to a power textually committed by the Constitution to
325[30]
In Re: Sealed Case No. 96-3124, June 17, 1997.
326[31]
Id.
327[32]
CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at
pp. 18-19.
328 [38]
360 Phil. 133 (1998).
329[39]
Supra.
 196

the President, such as the area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-in-
chief,330[40] appointing,331[41] pardoning,332[42] and diplomatic333[43]
powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality
than others.

The above cases, especially, Nixon, In Re Sealed Case and

Judicial Watch, somehow provide the elements of presidential
communications privilege, to wit:
1) The protected communication must relate to a
“quintessential and non-delegable presidential
power.”

2) The communication must be authored or “solicited

and received” by a close advisor of the President or
the President himself. The judicial test is that an
advisor must be in “operational proximity” with the
President.

3) The presidential communications privilege

remains a qualified privilege that may be overcome by
a showing of adequate need, such that the information
sought “likely contains important evidence” and by
the unavailability of the information elsewhere by an
appropriate investigating authority.334[44]

In the case at bar, Executive Secretary Ermita premised his claim

of executive privilege on the ground that the communications elicited
by the three (3) questions “fall under conversation and
correspondence between the President and public officials” necessary
in “her executive and policy decision-making process” and, that “the
information sought to be disclosed might impair our diplomatic as well
as economic relations with the People’s Republic of China.” Simply
put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign
relations.

Using the above elements, we are convinced that, indeed, the

communications elicited by the three (3) questions are covered by the
presidential communications privilege. First, the communications
relate to a “quintessential and non-delegable power” of the President,
i.e. the power to enter into an executive agreement with other
countries. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. 335[45]
Second, the communications are “received” by a close advisor of the
President. Under the “operational proximity” test, petitioner can be
considered a close advisor, being a member of President Arroyo’s
cabinet. And third, there is no adequate showing of a compelling need
330 [40]
Section 18, Article VII.
331 [41]
Section 16, Article VII.
332 [42]
Section 19, Article VII.
333 [43]
Section 20 and 21, Article VII.
334[44]
CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and Recent Developments,
supra..
335[45]
Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903.
 197

that would justify the limitation of the privilege and of the

unavailability of the information elsewhere by an appropriate
investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is

subject to balancing against other interest. In other words,
confidentiality in executive privilege is not absolutely protected by
the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need

for confidentiality of high-level communications, without
more, can sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all
circumstances.

The foregoing is consistent with the earlier case of Nixon v.

Sirica,336[46] where it was held that presidential communications are
presumptively privileged and that the presumption can be overcome
only by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing
interests of the political branches of the government “in the manner
that preserves the essential functions of each Branch.” 337[47] Here, the
record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for the answers to
the three (3) questions in the enactment of a law. Instead, the
questions veer more towards the exercise of the legislative oversight
function under Section 22 of Article VI rather than Section 21 of the
same Article. Senate v. Ermita ruled that the “the oversight
function of Congress may be facilitated by compulsory process
only to the extent that it is performed in pursuit of legislation.”
It is conceded that it is difficult to draw the line between an inquiry
in aid of legislation and an inquiry in the exercise of oversight
function of Congress. In this regard, much will depend on the content
of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege

does not guard against a possible disclosure of a crime or wrongdoing.
We see no dispute on this. It is settled in United States v. Nixon338[48]
that “demonstrated, specific need for evidence in pending criminal
trial” outweighs the President’s “generalized interest in
confidentiality.” However, the present case’s distinction with the
Nixon case is very evident. In Nixon, there is a pending criminal
proceeding where the information is requested and it is the demands
of due process of law and the fair administration of criminal justice
that the information be disclosed. This is the reason why the U.S.
Court was quick to “limit the scope of its decision.” It stressed
that it is “not concerned here with the balance between the
President’s generalized interest in confidentiality x x x and
congressional demands for information.” Unlike in Nixon, the
information here is elicited, not in a criminal proceeding, but in a
legislative inquiry. In this regard, Senate v. Ermita stressed that the
336 [46]
159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973).
337[47]
U.S. v. Nixon, 418 U.S. 683 (1974)
338 [48]
Supra.
 198

validity of the claim of executive privilege depends not only on the

ground invoked but, also, on the procedural setting or the context in
which the claim is made. Furthermore, in Nixon, the President did not
interpose any claim of need to protect military, diplomatic or sensitive
national security secrets. In the present case, Executive Secretary
Ermita categorically claims executive privilege on the grounds of
presidential communications privilege in relation to her executive
and policy decision-making process and diplomatic secrets.

Respondent Committees further contend that the grant of

petitioner’s claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern.339[50] We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where he
was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of
executive privilege.

The right to public information, like any other right, is subject to

limitation. Section 7 of Article III provides:

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.

The provision itself expressly provides the limitation, i.e. as

may be provided by law. Some of these laws are Section 7
of Republic Act (R.A.) No. 6713,340[51] Article 229341[52] of the
Revised Penal Code, Section 3 (k) 342[53] of R.A. No. 3019, and
Section 24(e)343[54] of Rule 130 of the Rules of Court. These are in
addition to what our body of jurisprudence classifies as
confidential344[55] and what our Constitution considers as belonging to
339 [50]
Citing Section 7, Article 3 of the Constitution.
340[51]
Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official
and employee and are hereby declared to be unlawful: x x x
( c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge,
confidential or classified information officially known to them by reason of their office and not made available to the public,
either:
To further their private interests, or give undue advantage to anyone; or
To prejudice the public interest.
341[52]
Article 229. Revelation of secrets by an officer. – Any public officer who shall reveal any secret known to him by
reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which
should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual
special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall
have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period,
temporary special disqualification and a fine not exceeding 500 pesos shall be imposed.
342 [53]
Section 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:
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in advance of its authorized release date.
343[54]
Sec. 24. Disqualification by reason of privileged communications. – The following persons cannot testify as to
matters learned in confidence in the following case: x x x
(a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him
in official confidence, when the court finds that the public interest would suffer by the disclosure.
344[55]
In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as
confidential such as “information on military and diplomatic secrets, information affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution of the accused.” It also stated that “presidential
 199

the larger concept of executive privilege. Clearly, there is a

recognized public interest in the confidentiality of certain information.
We find the information subject of this case belonging to such kind.

More than anything else, though, the right of Congress or any of

its Committees to obtain information in aid of legislation cannot be
equated with the people’s right to public information. The former
cannot claim that every legislative inquiry is an exercise of the
people’s right to information. The distinction between such rights is
laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the

right of Congress to information which underlies the power
of inquiry and the right of people to information on matters
of public concern. For one, the demand of a citizen for the
production of documents pursuant to his right to
information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. Neither does
the right to information grant a citizen the power to exact
testimony from government officials. These powers belong
only to Congress, not to an individual citizen.

Thus, while Congress is composed of representatives

elected by the people, it does not follow, except in a
highly qualified sense, that in every exercise of its
power of inquiry, the people are exercising their right to
information.

The members of respondent Committees should not invoke as

justification in their exercise of power a right properly belonging to the
people in general. This is because when they discharge their power,
they do so as public officials and members of Congress. Be that as it
may, the right to information must be balanced with and should give
way, in appropriate cases, to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and
privileges which is the subject of careful review by numerous decided
cases.

B- The Claim of Executive Privilege

is Properly Invoked

We now proceed to the issue -- whether the claim is properly

invoked by the President. Jurisprudence teaches that for the claim to
be properly invoked, there must be a formal claim of privilege, lodged
by the head of the department which has control over the matter.” 345[56]
A formal and proper claim of executive privilege requires a “precise
and certain reason” for preserving their confidentiality. 346[57]

The Letter dated November 17, 2007 of Executive Secretary

Ermita satisfies the requirement. It serves as the formal claim of
conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme
Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. Such information
cannot be pried-open by a co-equal branch of government.
345 [56]
United States v. Reynolds, supra..
346 [57]
Unites States v. Article of Drug, 43 F.R.D. at 190.
 200

privilege. There, he expressly states that “this Office is constrained

to invoke the settled doctrine of executive privilege as refined in
Senate v. Ermita, and has advised Secretary Neri accordingly.”
Obviously, he is referring to the Office of the President. That is more
than enough compliance. In Senate v. Ermita, a less categorical letter
was even adjudged to be sufficient.

With regard to the existence of “precise and certain reason,”

we find the grounds relied upon by Executive Secretary Ermita
specific enough so as not “to leave respondent Committees in the dark
on how the requested information could be classified as privileged.”
The case of Senate v. Ermita only requires that an allegation be made
“whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.” The particular ground
must only be specified. The enumeration is not even intended to be
comprehensive.”347[58] The following statement of grounds satisfies the
requirement:

The context in which executive privilege is being invoked

is that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the
People’s Republic of China. Given the confidential nature
in which these information were conveyed to the President,
he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the
privilege is designed to protect.

At any rate, as held further in Senate v. Ermita, 348[59] the

Congress must not require the executive to state the reasons for the
claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. This is a matter of
respect to a coordinate and co-equal department.

II
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt
Order

It must be reiterated that when respondent Committees issued the

show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were
the three (3) questions he claimed to be covered by executive
privilege. In addition thereto, he submitted Atty. Bautista’s letter,
stating that his non-appearance was upon the order of the President
and specifying the reasons why his conversations with President
Arroyo are covered by executive privilege. Both correspondences
include an expression of his willingness to testify again, provided
he “be furnished in advance” copies of the questions. Without
responding to his request for advance list of questions, respondent
Committees issued the Order dated January 30, 2008, citing him in
contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time
that he would appear and give his testimony. Thereupon, petitioner
347[58]
Senate v. Ermita, supra., p. 63.
348 [59]
Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L. R. 2d 382 (1953).
 201

filed a motion for reconsideration, informing respondent Committees

that he had filed the present petition for certiorari.

Respondent Committees committed grave abuse of discretion in

issuing the contempt Order in view of five (5) reasons.

First, there being a legitimate claim of executive privilege, the

issuance of the contempt Order suffers from constitutional infirmity.

Second, respondent Committees did not comply with the

requirement laid down in Senate v. Ermita that the invitations should
contain the “possible needed statute which prompted the need for the
inquiry,” along with “the usual indication of the subject of inquiry
and the questions relative to and in furtherance thereof.”
Compliance with this requirement is imperative, both under Sections
21 and 22 of Article VI of the Constitution. This must be so to ensure
that the rights of both persons appearing in or affected by such
inquiry are respected as mandated by said Section 21 and by virtue of
the express language of Section 22. Unfortunately, despite petitioner’s
repeated demands, respondent Committees did not send him an
advance list of questions.

Third, a reading of the transcript of respondent Committees’

January 30, 2008 proceeding reveals that only a minority of the
members of the Senate Blue Ribbon Committee was present during the
deliberation. 349[61] Section 18 of the Rules of Procedure Governing
Inquiries in Aid of Legislation provides that:

“The Committee, by a vote of majority of all its

members, may punish for contempt any witness before it
who disobeys any order of the Committee or refuses to be
sworn or to testify or to answer proper questions by the
Committee or any of its members.”

Clearly, the needed vote is a majority of all the members of the

Committee. Apparently, members who did not actually participate in
the deliberation were made to sign the contempt Order. Thus, there is
a cloud of doubt as to the validity of the contempt Order dated January
30, 2008.

Fourth, we find merit in the argument of the OSG that

respondent Committees likewise violated Section 21 of Article VI of
the Constitution, requiring that the inquiry be in accordance with the
“duly published rules of procedure.” We quote the OSG’s
explanation:

The phrase ‘duly published rules of procedure’

requires the Senate of every Congress to publish its rules
of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or
after it. Since Senatorial elections are held every three (3)
years for one-half of the Senate’s membership, the
composition of the Senate also changes by the end of each
term. Each Senate may thus enact a different set of rules as
349[61]
Trancript of the January 30, 2008 proceedings, p. 29.
 202

it may deem fit. Not having published its Rules of

Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore,
procedurally infirm.

And fifth, respondent Committees’ issuance of the contempt

Order is arbitrary and precipitate. It must be pointed out that
respondent Committees did not first pass upon the claim of executive
privilege and inform petitioner of their ruling. Instead, they curtly
dismissed his explanation as “unsatisfactory” and simultaneously
issued the Order citing him in contempt and ordering his immediate
arrest and detention.

A fact worth highlighting is that petitioner is not an unwilling

witness. He manifested several times his readiness to testify before
respondent Committees. He refused to answer the three (3) questions
because he was ordered by the President to claim executive privilege.
It behooves respondent Committees to first rule on the claim of
executive privilege and inform petitioner of their finding thereon,
instead of peremptorily dismissing his explanation as “unsatisfactory.”
Undoubtedly, respondent Committees’ actions constitute grave
abuse of discretion for being arbitrary and for denying petitioner
due process of law. The same quality afflicted their conduct when
they (a) disregarded petitioner’s motion for reconsideration alleging
that he had filed the present petition before this Court and (b) ignored
petitioner’s repeated request for an advance list of questions, if there
be any aside from the three (3) questions as to which he claimed to be
covered by executive privilege.

Even the courts are repeatedly advised to exercise the power of

contempt judiciously and sparingly with utmost self-restraint with the
end in view of utilizing the same for correction and preservation of the
dignity of the court, not for retaliation or vindication. 350[63] Respondent
Committees should have exercised the same restraint, after all
petitioner is not even an ordinary witness. He holds a high position in
a co-equal branch of government.

In this regard, it is important to mention that many incidents of

judicial review could have been avoided if powers are discharged with
circumspection and deference. Concomitant with the doctrine of
separation of powers is the mandate to observe respect to a co-equal
branch of the government.

In this present crusade to “search for truth,” we should turn to

the fundamental constitutional principles which underlie our
tripartite system of government, where the Legislature enacts the
law, the Judiciary interprets it and the Executive implements it.
They are considered separate, co-equal, coordinate and supreme
within their respective spheres but, imbued with a system of checks
and balances to prevent unwarranted exercise of power. The Court’s
mandate is to preserve these constitutional principles at all times to
keep the political branches of government within constitutional
bounds in the exercise of their respective powers and prerogatives,
even if it be in the search for truth. This is the only way we can
350 [63]
Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA 519.
 203

preserve the stability of our democratic institutions and uphold the

Rule of Law.

The respondents-Committees were therefore stopped from

calling the petitioner and ask the three(3) questions mentioned above
in connection with his conversations with the President being covered
by the “executive privilege” rule.

Power of Congress to conduct inquiries in aid

of legislation; Right to Privacy; Public
disclosure of government transactions; right to
information on matters of public concern;
accountability of public officers; and right
against self-incrimination;

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,

October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced

Philippine Senate Resolution No. 455 (Senate Res. No. 455), 351[4] “directing
an inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of Directors.”

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

of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the
PCGG, one of the herein petitioners, inviting him to be one of the resource
persons in the public meeting jointly conducted by the Committee on
Government Corporations and Public Enterprises and Committee on Public
Services. The purpose of the public meeting was to deliberate on Senate
Res. No. 455.352[6]

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

prior commitment.353[7] At the same time, he invoked Section 4(b) of
E.O. No. 1 earlier quoted.

Unconvinced with the above Compliance and Explanation, the

Committee on Government Corporations and Public Enterprises and the
Committee on Public Services issued an Order354[13] directing Major General
Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio
and his Commissioners under arrest for contempt of the Senate. The Order
bears the approval of Senate President Villar and the majority of the
Committees’ members.
351[4]
Annex “E” of the Petition in G.R. No. 174318.
352[6]
Annex “F” of the Petition in G.R. No. 174318.
353[7]
Annex “G” of the Petition in G.R. No. 174318.
354[13]
Annex “D” of the petition in G.R. No. 174318.
 204

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

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

Hence, this petition.

I S S U E:

Crucial to the resolution of the present petitions is the fundamental

issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987
Constitution. On this lone issue hinges the merit of the contention of
Chairman Sabio and his Commissioners that their refusal to appear before
respondent Senate Committees is justified.

Ranged against it is Article VI, Section 21 of the 1987 Constitution

granting respondent Senate Committees the power of legislative inquiry. It
reads:

The Senate or the House of Representatives

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

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting
such power of legislative inquiry by exempting all PCGG members or staff
from testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall

be required to testify or produce evidence in any
judicial, legislative or administrative proceeding
concerning matters within its official cognizance.

The Congress’ power of inquiry has been recognized in foreign

jurisdictions long before it reached our shores through McGrain v.
Daugherty,355[15] cited in Arnault v. Nazareno.356[16] In those earlier days,
American courts considered the power of inquiry as inherent in the power
to legislate.

In Arnault, the Supreme Court adhered to a similar theory. Citing

McGrain, it recognized that the power of inquiry is “an essential and
appropriate auxiliary to the legislative function,” thus:
Although there is no provision in the “Constitution
expressly investing either House of Congress with power to
make investigations and exact testimony to the end that it may
355[15]
273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927).
356[16]
No. L- 3820, 87 Phil. 29 (1950).
 205

exercise its legislative functions advisedly and effectively, such

power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process
to enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely
or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or
change; and where the legislation body does not itself possess
the requisite information – which is not infrequently true –
recourse must be had to others who possess it.”

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

provisions on such power made their maiden appearance in Article VIII,
Section 12 of the 1973 Constitution. 357[18] Then came the 1987 Constitution
incorporating the present Article VI, Section 12. What was therefore
implicit under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987 Constitutions.358[19]

Notably, the 1987 Constitution recognizes the power of investigation,

not just of Congress, but also of “any of its committee.” This is significant
because it constitutes a direct conferral of investigatory power upon the
committees and it means that the mechanisms which the Houses can take in
order to effectively perform its investigative function are also available to
the committees.359[20]

It can be said that the Congress’ power of inquiry has gained more
solid existence and expansive construal. The Court’s high regard to such
power is rendered more evident in Senate v. Ermita,360[21] where it
categorically ruled that “the power of inquiry is broad enough to cover
officials of the executive branch.” Verily, the Court reinforced the doctrine
in Arnault that “the operation of government, being a legitimate subject
for legislation, is a proper subject for investigation” and that “the power
of inquiry is co-extensive with the power to legislate.”

Considering these jurisprudential instructions, Section 4(b) is directly

repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG
members and staff from the Congress’ power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision granting such
exemption. The Congress’ power of inquiry, being broad, encompasses
everything that concerns the administration of existing laws as well as
proposed or possibly needed statutes. 361[22] It even extends “to government
agencies created by Congress and officers whose positions are within the
power of Congress to regulate or even abolish.”362[23] PCGG belongs to
this class.

357[18]
Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22.
358[19]
Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.737.
359[20]
Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.739.
360[21]
G.R. No. 169777, April 20, 2006.
361[22]
Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195.
362[23]
Senate v. Ermita, Id.
 206

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

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

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

Section 1 of the Constitution stating that: “Public office is a public trust.
Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.”

The provision presupposes that since an incumbent of a public office

is invested with certain powers and charged with certain duties pertinent to
sovereignty, the powers so delegated to the officer are held in trust for the
people and are to be exercised in behalf of the government or of all
citizens who may need the intervention of the officers. Such trust
extends to all matters within the range of duties pertaining to the office.
In other words, public officers are but the servants of the people, and
not their rulers.363[24]

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

the principle of public accountability. It places the PCGG members and
staff beyond the reach of courts, Congress and other administrative bodies.
Instead of encouraging public accountability, the same provision only
institutionalizes irresponsibility and non-accountability. In Presidential
Commission on Good Government v. Peña, 364[25] Justice Florentino P.
Feliciano characterized as “obiter” the portion of the majority opinion
barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for
damages filed against the PCGG and its Commissioners. He eloquently
opined:

The above underscored portions are, it is respectfully

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

x x x
It would seem constitutionally offensive to suppose that a
member or staff member of the PCGG could not be required
to testify before the Sandiganbayan or that such members
were exempted from complying with orders of this Court.
363[24]
De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.
364[25]
No. L-77663, April 12, 1988, 159 SCRA 558.
 207

Chavez v. Sandiganbayan365[26] reiterates the same view. Indeed,

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

NEGROS ORIENTAL II ELECTRIC COOPERATIVE

VS. SANGGUNIANG PANGLUNGSOD OF
DUMAGUETE CITY, G.R. No. 72492, Nov. 5, 1987,
155 SCRA 421

Petitioners contend that the respondent Sangguniang Panlungsod

of Dumaguete is bereft of the power to compel the attendance and
testimony of witnesses, nor the power to order the arrest of witnesses
who fail to obey its subpoena. It is further argued that assuming the
power to compel the attendance and testimony of witnesses to be
lodged in said body, it cannot be exercised in the investigation of
matters affecting the terms and conditions of the franchise granted to
NORECO II which are beyond the jurisdiction of the Sangguniang
Panlungsod.

Respondents, for their part, claim that inherent in the legislative

functions performed by the respondent Sangguniang Panlungsod is the
power to conduct investigations in aid of legislation and with it, the
power to punish for contempt in inquiries on matters within its
jurisdiction (Rollo, p. 46). It is also the position of the respondents that
the contempt power, if not expressly granted, is necessarily implied
from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-
49). Furthermore, the respondents assert that an inquiry into the
installation or use of inefficient power lines and its effect on the power
consumption cost on the part of Dumaguete residents is well-within
the jurisdiction of the Sangguniang Panlungsod and its committees.

1. A line should be drawn between the powers of Congress as the

repository of the legislative power under the Constitution, and those
that may be exercised by the legislative bodies of local government
unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere
creatures of law, possess delegated legislative power. While the
Constitution does not expressly vest Congress with the power to
punish non-members for legislative contempt, the power has
nevertheless been invoked by the legislative body as a means of
preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29
[1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that
courts wield an inherent power to "enforce their authority, preserve
their integrity, maintain their dignity, and ensure the effectiveness of
the administration of justice." (Commissioner v. Cloribel, 127 Phil.
716, 723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases).
The exercise by Congress of this awesome power was questioned for
the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29
[1950]) where this Court held that the legislative body indeed
possessed the contempt power.

But no person can be punished for contumacy as a witness

before either House, unless his testimony is required in a matter into
which that House has jurisdiction to inquire. (Kilbourn vs. Thompson,
26, L.ed., 377.)
365[26]
193 SCRA 282 (1991).
 208

The principle that Congress or any of its bodies has the power to
punish recalcitrant witnesses is founded upon reason and policy. Said
power must be considered implied or incidental to the exercise of
legislative power. How could a legislative body obtain the knowledge
and information on which to base intended legislation if it cannot
require and compel the disclosure of such knowledge and information,
if it is impotent to punish a defiance of its power and authority? When
the framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the real of its respective
authority, it must have intended each department's authority to be full
and complete, independently of the other's authority or power. And
how could the authority and power become complete if for every act
of refusal every act of defiance, every act of contumacy against it, the
legislative body must resort to the judicial department for the
appropriate remedy, because it is impotent by itself to punish or deal
therewith, with the affronts committed against its authority or dignity. .
. (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370
[1955]).

The aforequoted pronouncements in the two Arnault cases,

supra, broke ground in what was then an unexplored area of
jurisprudence, and succeeded in supplying the raison d' etre of this
power of Congress even in the absence of express constitutional grant.
Whether or not the reasons for upholding the existence of said power
in Congress may be applied mutatis mutandis to a questioned exercise
of the power of contempt by the respondent committee of a city
council is the threshold issue in the present controversy.

3. The exercise by the legislature of the contempt power is a matter

of self-preservation as that branch of the government vested with the
legislative power, independently of the judicial branch, asserts its
authority and punishes contempts thereof. The contempt power of the
legislature is, therefore, sui generis, and local legislative bodies cannot
correctly claim to possess it for the same reasons that the national
legislature does. The power attaches not to the discharge of legislative
functions per se but to the character of the legislature as one of the
three independent and coordinate branches of government. The same
thing cannot be said of local legislative bodies which are creations of
law.

4. To begin with, there is no express provision either in the 1973

Constitution or in the Local Government Code (Batas Pambansa Blg.
337) granting local legislative bodies, the power to subpoena witnesses
and the power to punish non-members for contempt. Absent a
constitutional or legal provision for the exercise of these powers, the
only possible justification for the issuance of a subpoena and for the
punishment of non-members for contumacious behaviour would be for
said power to be deemed implied in the statutory grant of delegated
legislative power. But, the contempt power and the subpoena power
partake of a judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of the
performance of legislative functions. To allow local legislative bodies
or administrative agencies to exercise these powers without express
statutory basis would run afoul of the doctrine of separation of powers.
 209

These cannot be presumed to exist in favor of the latter and must

be considered as an exception to Sec. 4 of B.P. 337 which
provides for liberal rules of interpretation in favor of local
autonomy. Since the existence of the contempt power in
conjunction with the subpoena power in any government body
inevitably poses a potential derogation of individual rights, i.e.
compulsion of testimony and punishment for refusal to testify,
the law cannot be liberally construed to have impliedly granted
such powers to local legislative bodies. It cannot be lightly
presumed that the sovereign people, the ultimate source of all
government powers, have reposed these powers in all
government agencies. The intention of the sovereign people,
through their representatives in the legislature, to share these
unique and awesome powers with the local legislative bodies
must therefore clearly appear in pertinent legislation.

There being no provision in the Local Government Code

explicitly granting local legislative bodies, the power to issue
compulsory process and the power to punish for contempt, the
Sanggunian Panlungsod of Dumaguete is devoid of power to punish
the petitioners Torres and Umbac for contempt. The Ad-Hoc
Committee of said legislative body has even less basis to claim that it
can exercise these powers.

Sections 22. The heads of departments may upon their

own initiative, with the consent of the President, or
upon the request of either House, as the Rules of each
House shall provide, appear before and be heard by
such House on any matter pertaining to their
departments. Written questions shall be submitted to
the President of the Senate or the Speaker of the HR at
least 3 days before their scheduled appearance.
Interpellations shall not be limited to written questions,
but may not cover matter matters related thereto.
When the security of the State or the public interest so
requires and the President so states in writing, the
appearance shall be conducted in executive session.

Section 23 [1] The Congress, by a vote of 2/3 of both

Houses in a joint session assembled, voting separately,
shall have the sole power to declare the existence of a
state of war.

[2] In times of war or other national emergency,

the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner
withdrawn by a resolution of the Congress, such powers
shall cease upon the next adjournment thereof.

a. Note the limitations and restrictions for the delegation.

b. Note also that it could be withdrawn by mere resolution.

 210

c. What is referred to by the phrase "next adjournment?"

d. Read:
1) ARANETA VS. DINGLASAN, 84 Phil. 369
- the first emergency powers cases
2) RODRIGUEZ VS. GELLA, 92 Phil. 603
- the second emergency powers cases.
3) Republic Act No. 6826, Dec.20, 1989 which grants emergency
powers to President Aquino.

Sections 24. All appropriations, revenue or tariff bills, bills authorizing

increase of the 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.

NOTE: In Tolentino vs. Secretary of Finance, the Supreme Court held

that the E-VAT Law is constitutional even if the same was the VERSION
which came from the Senate, not from the House of Representatives. This is
so because the Senate is allowed to “propose amendments” to bills which
must exclusively originate from the House of Representatives.

Section 25 [1] The Congress may not increase the appropriation

recommended by the President for the operation of the government as
specified in the budget. The form, content, and manner of preparation
of the budget shall be prescribed by law.

[2 No provision or enactment shall be embraced in the general

appropriations bill unless it relates specifically to some particular
appropriation therein. Any provision or enactment shall be limited in
its operation to the appropriation to which it relates.

[3] The procedure in approving appropriations for the Congress

shall strictly follow the procedure for approving appropriations for
other departments and agencies.

[4] A special appropriations bill shall specify the purpose for

which it is intended, and shall be supported by funds actually available
as certified by the national treasurer, or to be raised by a corresponding
revenue proposal therein.

[5] No law shall be passed authorizing any transfer of

appropriations; however, the President, the President of the Senate, the
Speaker of the house of Representatives, the Chief justice of the
Supreme Court, and the heads of the constitutional commissions may,
by law, be authorized to augment any item in the general
appropriations law for their respective offices from savings in other
items of their respective appropriations.

[6] Discretionary funds appropriated for particular officials shall

be disbursed only for the purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by law.

[7] If, by the end of any fiscal year, the Congress shall have
failed to pass the general appropriations bill for the ensuing fiscal year,
 211

the general appropriations law for the preceding year shall be deemed
reenacted and shall remain in force and effect until the general
appropriations bill is passed by the Congress.

Read: DEMETRIA vs. ALBA, 148 SCRA 208

Section 26. [1] Every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.

[2] No bill shall be passed unless it has passed 3 readings on

separate days, and printed copies thereof in its final form have been
distributed to its members 3 days before its passage, except when the
President certifies as to its necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of the bill,
no amendment thereto shall be allowed, and the vote thereon shall be
taken immediately thereafter, and the yeas and nays entered in the
Journal.

Read:
1) TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208
2) DE LA CRUZ VS. PARAS, 123 SCRA 569
3) INSULAR LUMBER VS. CTA, 104 SCRA 710
2) LIDASAN VS. COMELEC, 21 SCRA 496

The case questions the law entitled "An Act Creating the Municipality
of Dianaton in the Province of Lanao del Sur", but which includes
barrios located in another province Cotabato to be spared from attack
planted upon the constitutional mandate that "No bill which may be
enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill"?

Doubtless, as the statute stands, twelve barrios in two

municipalities in the province of Cotabato are transferred to the province
of Lanao del Sur. This brought about a change in the boundaries of the
two provinces.
Apprised of this development, on September 7, 1967, the Office of the
President, through the Assistant Executive Secretary, recommended to
Comelec that the operation of the statute be suspended until "clarified by
correcting legislation."

Comelec, by resolution of September 20, 1967, stood by its own

interpretation, declared that the statute "should be implemented unless
declared unconstitutional by the Supreme Court."

It may be well to state, right at the outset, that the constitutional

provision contains dual limitations upon legislative power. First.
Congress is to refrain from conglomeration, under one statute, of
heterogeneous subjects. Second. The title of the bill is to be couched in a
language sufficient to notify the legislators and the public and those
concerned of the import of the single subject thereof.

Of relevance here is the second directive. The subject of the statute

must be "expressed in the title" of the bill. This constitutional
requirement "breathes the spirit of command." Compliance is
imperative, given the fact that the Constitution does not exact of
 212

Congress the obligation to read during its deliberations the entire text of
the bill. In fact, in the case of House Bill 1247, which became Republic
Act 4790, only its title was read from its introduction to its final approval
in the House of Representatives where the bill, being of local
application, originated.

Of course, the Constitution does not require Congress to employ in

the title of an enactment, language of such precision as to mirror, fully
index or catalogue all the contents and the minute details therein. It
suffices if the title should serve the purpose of the constitutional demand
that it inform the legislators, the persons interested in the subject of the
bill, and the public, of the nature, scope and consequences of the
proposed law and its operation. And this, to lead them to inquire into the
body of the bill, study and discuss the same, take appropriate action
thereon, and, thus, prevent surprise or fraud upon the legislators.

The test of the sufficiency of a title is whether or not it is

misleading; and, which technical accuracy is not essential, and the
subject need not be stated in express terms where it is clearly inferable
from the details set forth, a title which is 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, is bad.

In determining sufficiency of particular title its substance rather

than its form should be considered, and the purpose of the constitutional
requirement, of giving notice to all persons interested, should be kept in
mind by the court.

With the foregoing principles at hand, we take a hard look at the

disputed statute. The title "An Act Creating the Municipality of
Dianaton, in the Province of Lanao del Sur" 8 projects the impression
that solely the province of Lanao del Sur is affected by the creation of
Dianaton. Not the slightest intimation is there that communities in the
adjacent province of Cotabato are incorporated in this new Lanao del Sur
town. The phrase "in the Province of Lanao del Sur," read without
subtlety or contortion, makes the title misleading, deceptive. For, the
known fact is that the legislation has a two-pronged purpose combined in
one statute: (1) it creates the municipality of Dianaton purportedly from
twenty-one barrios in the towns of Butig and Balabagan, both in the
province of Lanao del Sur; and (2) it also dismembers two municipalities
in Cotabato, a province different from Lanao del Sur.

The baneful effect of the defective title here presented is not so

difficult to perceive. Such title did not inform the members of Congress
as to the full impact of the law; it did not apprise the people in the towns
of Buldon and Parang in Cotabato and in the province of Cotabato itself
that part of their territory is being taken away from their towns and
province and added to the adjacent Province of Lanao del Sur; it kept the
public in the dark as to what towns and provinces were actually affected
by the bill. These are the pressures which heavily weigh against the
constitutionality of Republic Act 4790.
 213

5) ALALAYAN VS. NAPOCOR, 24 SCRA 172

6) CORDERO VS. CABATUANDO, 6 SCRA 418
7) TATAD VS. SECRETARY OF ENERGY, November 5, 1997, 281 SCRA 330

17. Section 27. [1] Every bill passed by 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 consideration , 2/3 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 2/3 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 30 days after the date
of receipt thereof; otherwise, it shall become a law as if he signed it.

[2] The President shall have the power to veto any particular
item or items in an appropriation, revenue or tariff bill, but the veto
shall not affect the item or items to which he does not object.

1) Read:
a. BENGZON VS. SECRETARY OF JUSTICE, 62 Phil. 912
b. BOLINAO ELECTRONICS VS. VALENCIA, 11 SCRA 486
c. NEPTALI GONZALES VS. MACARAIG, November 19, 1990

Section 55 of the Appropriations Act of 1989 (Section 55 [FY '89]

hereinafter), which was vetoed by the President, reads:

SEC. 55. Prohibition Against the Restoration or Increase of Recommended

Appropriations Disapproved and /or Reduced by Congress: No item of
appropriation recommended by the President in the Budget submitted to
Congress pursuant to Article VII, Section 22 of the Constitution which has
been disapproved or reduced in this Act shall be restored or increased by the
use of appropriations authorized for other purposes by augmentation. An item
of appropriation for any purpose recommended by the President in the
Budget shall be deemed to have been disapproved by Congress if no
corresponding appropriation for the specific purpose is provided in this Act.

We quote below the reason for the Presidential veto:

The provision violates Section 25 (5) of Article VI of the Constitution. If

allowed, this Section would nullify not only the constitutional and statutory
authority of the President, but also that of the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and Heads of Constitutional Commissions, to augment any item in the
general appropriations law for their respective offices from savings in other
items of their respective appropriation. A careful review of the legislative
action on the budget as submitted shows that in almost all cases, the budgets
of agencies as recommended by the President, as well as those of the Senate,
the House of Representatives, and the Constitutional Commissions, have
been reduced. An unwanted consequence of this provision is the inability of
the President, the President of the Senate, Speaker of the House of
 214

Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions to augment any item of appropriation of their
respective offices from savings in other items of their respective
appropriations even in cases of calamity or in the event of urgent need to
accelerate the implementation of essential public services and infrastructure
projects.

I am vetoing this provision for the reason that it violates Section 25 (5) of
Article VI of the Constitution in relation to Sections 44 and 45 of P.D. No.
1177 as amended by R.A. No. 6670 which authorizes the President to use
savings to augment any item of appropriations in the Executive Branch of the
Government.

The fundamental issue raised is whether or not the veto by the President
of Section 55 of the 1989 Appropriations Bill (Section 55 FY'89), and
subsequently of its counterpart Section 16 of the 1990 Appropriations Bill
(Section 16 FY'90), is unconstitutional and without effect.

The focal issue for resolution is whether or not the President exceeded
the item veto power accorded by the Constitution. Or differently put, has the
President the power to veto "provisions" of an Appropriations Bill?

Petitioners contend that Section 55 FY '89) and Section 16 (FY'90) are

provisions and not items and are, therefore, outside the scope of the item veto
power of the President.
The veto power of the President is expressed in Article VI, Section 27 of the
1987 Constitution reading, in full, as follows:

Sec. 27.

(2) The President shall have the power to veto any particular item or items
in an appropriation, revenue, or tariff bill, but the veto shall not affect the
item or items to which he does not object.

Paragraph (1) refers to the general veto power of the President and if
exercised would result in the veto of the entire bill, as a general rule.
Paragraph (2) is what is referred to as the item veto power or the line-veto
power. It allows the exercise of the veto over a particular item or items in an
appropriation, revenue, or tariff bill. As specified, the President may not veto
less than all of an item of an Appropriations Bill. In other words, the power
given the Executive to disapprove any item or items in an Appropriations Bill
does not grant the authority to veto a part of an item and to approve the
remaining portion of the same item.

It is to be noted that the counterpart provision in the 1987 Constitution

(Article VI, Section 27 [2], supra), is a verbatim reproduction except for the
public official concerned. In other words, also eliminated has been any
reference to the veto of a provision. The vital question is: should this
exclusion be interpreted to mean as a disallowance of the power to veto a
provision, as petitioners urge?
The terms item and provision in budgetary legislation and practice are
concededly different. An item in a bill refers to the particulars, the details, the
distinct and severable parts . . . of the bill (Bengzon, supra, at 916). It is an
indivisible sum of money dedicated to a stated purpose (Commonwealth v.
 215

Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States
Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410,
414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an 'item' of an appropriation
bill obviously means an item which in itself is a specific appropriation of
money, not some general provision of law, which happens to be put into an
appropriation bill."

It is our considered opinion that, notwithstanding the elimination in Article

VI, Section 27 (2) of the 1987 Constitution of any reference to the veto of a
provision, the extent of the President's veto power as previously defined by
the 1935 Constitution has not changed. This is because the eliminated proviso
merely pronounces the basic principle that a distinct and severable part of a
bill may be the subject of a separate veto (Bengzon v. Secretary of Justice, 62
Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The Constitution of the
Republic of the Philippines, 1st ed., 154-155, [1988]).

The restrictive interpretation urged by petitioners that the President may

not veto a provision without vetoing the entire bill not only disregards the
basic principle that a distinct and severable part of a bill may be the subject
of a separate veto but also overlooks the Constitutional mandate that any
provision in the general appropriations bill shall relate specifically to some
particular appropriation therein and that any such provision shall be limited
in its operation to the appropriation to which it relates (1987 Constitution,
Article VI, Section 25 [2]). In other words, in the true sense of the term, a
provision in an Appropriations Bill is limited in its operation to some
particular appropriation to which it relates, and does not relate to the entire
bill.

But even assuming arguendo that provisions are beyond the executive power
to veto, we are of the opinion that Section 55 (FY '89) and Section 16 (FY
'90) are not provisions in the budgetary sense of the term. Article VI, Section
25 (2) of the 1987 Constitution provides:

Sec. 25 (2) No provision or enactment shall be embraced in the

general appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited in its
operation to the appropriation to which it relates.

Explicit is the requirement that a provision in the Appropriations Bill should

relate specifically to some "particular appropriation" therein. The challenged
"provisions" fall short of this requirement. Firstly, the vetoed "provisions" do
not relate to any particular or distinctive appropriation. They apply generally
to all items disapproved or reduced by Congress in the Appropriations Bill.
Secondly, the disapproved or reduced items are nowhere to be found on the
face of the Bill. To discover them, resort will have to be made to the original
recommendations made by the President and to the source indicated by
petitioners themselves, i.e., the "Legislative Budget Research and Monitoring
Office" (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more
of an expression of Congressional policy in respect of augmentation from
savings rather than a budgetary appropriation. Consequently, Section 55 (FY
'89) and Section 16 (FY '90) although labelled as "provisions," are actually
inappropriate provisions that should be treated as items for the purpose of the
President's veto power. (Henry v. Edwards [1977] 346 S Rep. 2d, 157-158).
 216

Just as the President may not use his item-veto to usurp constitutional
powers conferred on the legislature, neither can the legislature deprive the
Governor of the constitutional powers conferred on him as chief executive
officer of the state by including in a general appropriation bill matters more
properly enacted in separate legislation. The Governor's constitutional power
to veto bills of general legislation ... cannot be abridged by the careful
placement of such measures in a general appropriation bill, thereby forcing
the Governor to choose between approving unacceptable substantive
legislation or vetoing "items" of expenditure essential to the operation of
government. The legislature cannot by location ot a bill give it immunity
from executive veto. Nor it circumvent the Governor's veto power over
substantive legislation by artfully drafting general law measures so that they
appear to be true conditions or limitations on an item of appropriation.
Otherwise, the legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of government in
contravention of the separation of powers doctrine ... We are no more willing
to allow the legislature to use its appropriation power to infringe on the
Governor's constitutional right to veto matters of substantive legislation than
we are to allow the Governor to encroach on the constitutional powers of the
legislature. In order to avoid this result, we hold that, when the legislature
inserts inappropriate provisions in a general appropriation bill, such
provisions must be treated as items for purposes of the Governor's item veto
power over general appropriation bills.

Petitioners maintain, however, that Congress is free to impose conditions in

an Appropriations Bill and where conditions are attached, the veto power
does not carry with it the power to strike them out, citing Commonwealth v.
Dodson (11 SE 2d 130, supra) and Bolinao Electronics Corporation v.
Valencia (No. L-20740, June 30, 1964, 11 SCRA 486). In other words, their
theory is that Section 55 (FY'89) and Section 16 (FY'90) are such
conditions/restrictions and thus beyond the veto power.

There can be no denying that inherent in the power of appropriation is the

power to specify how money shall be spent; and that in addition to distinct
"items" of appropriation, the Legislature may include in Appropriation Bills
qualifications, conditions, limitations or restrictions on expenditure of funds.
Settled also is the rule that the Executive is not allowed to veto a condition or
proviso of an appropriation while allowing the appropriation itself to stand
(Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra,
which held that the veto of a condition in an Appropriations Bill which did
not include a veto of the items to which the condition related was deemed
invalid and without effect whatsoever.

The Power of augmentation and The Validity of the Veto

The President promptly vetoed Section 55 (FY'89) and Section 16 (FY'90)
because they nullify the authority of the Chief Executive and heads of
different branches of government to augment any item in the General
Appropriations Law for their respective offices from savings in other items of
their respective appropriations, as guaranteed by Article VI, Section 25 (5) of
the Constitution. Said provision reads:

Sec. 25. (5) No law shall be passed authorizing any transfer of

appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
 217

authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations. (Emphasis ours).

If, indeed, the Legislature believed that the exercise of the veto powers by
the Executive were unconstitutional, the remedy laid down by the
Constitution is crystal clear. A Presidential veto may be overriden by the
votes of two-thirds of members of Congress (1987 Constitution, Article VI,
Section 27[l], supra). But Congress made no attempt to override the
Presidential veto. Petitioners' argument that the veto is ineffectual so that
there is "nothing to override" (citing Bolinao) has lost force and effect with
the executive veto having been herein upheld.

e. BENGZON VS. DRILON, April 15, 1992

In the case at bar, the veto of these specific provisions in the General
Appropriations Act is tantamount to dictating to the Judiciary how its funds
should be utilized, which is clearly repugnant to fiscal autonomy. The
freedom of the Chief Justice to make adjustments in the utilization of the
funds appropriated for the expenditures of the judiciary, including the use of
any savings from any particular item to cover deficits or shortages in other
items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the
Judiciary must enjoy freedom in the disposition of the funds allocated to it in
the appropriations law. It knows its priorities just as it is aware of the fiscal
restraints. The Chief Justice must be given a free hand on how to augment
appropriations where augmentation is needed.

Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452

[1990]), the Court upheld the authority of the President and other key
officials to augment any item or any appropriation from savings in the
interest of expediency and efficiency. The Court stated that:

There should be no question, therefore, that statutory authority has, in fact,

been granted. And once given, the heads of the different branches of the
Government and those of the Constitutional Commissions are afforded
considerable flexibility in the use of public funds and resources (Demetria v.
Alba, supra). The doctrine of separation of powers is in no way endangered
because the transfer is made within a department (or branch of government)
and not from one department (branch) to another.

The Constitution, particularly Article VI, Section 25(5) also provides:

Sec. 25. (5) No law shall be passed authorizing any transfer of

appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations.

In the instant case, the vetoed provisions which relate to the use of savings
for augmenting items for the payment of the pension differentials, among
others, are clearly in consonance with the abovestated pronouncements of the
Court. The veto impairs the power of the Chief Justice to augment other
 218

items in the Judiciary's appropriation, in contravention of the constitutional

provision on "fiscal autonomy."

III

Finally, it can not be denied that the retired Justices have a vested right to the
accrued pensions due them pursuant to RA 1797.
The right to a public pension is of statutory origin and statutes dealing with
pensions have been enacted by practically all the states in the United States
(State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in
most countries of the world. Statutory provisions for the support of Judges or
Justices on retirement are founded on services rendered to the state. Where a
judge has complied with the statutory prerequisite for retirement with pay, his
right to retire and draw salary becomes vested and may not, thereafter, be
revoked or impaired. (Gay v. Whitehurst, 44 So ad 430)

Thus, in the Philippines, a number of retirement laws have been enacted, the
purpose of which is to entice competent men and women to enter the
government service and to permit them to retire therefrom with relative
security, not only those who have retained their vigor but, more so, those who
have been incapacitated by illness or accident. (In re: Amount of the Monthly
Pension of Judges and Justices Starting From the Sixth Year of their
Retirement and After the Expiration of the Initial Five-year Period of
Retirement, (190 SCRA 315 [1990]).

As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired
Justices of the Supreme Court and Court of Appeals.
This was amended by RA 1797 which provided for an automatic adjustment
of the pension rates. Through the years, laws were enacted and jurisprudence
expounded to afford retirees better benefits.
P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910
providing that the lump sum of 5 years gratuity to which the retired Justices
of the Supreme Court and Court of Appeals were entitled was to be computed
on the basis of the highest monthly aggregate of transportation, living and
representation allowances each Justice was receiving on the date of his
resignation. The Supreme Court in a resolution dated October 4, 1990, stated
that this law on gratuities covers the monthly pensions of retired Judges and
Justices which should include the highest monthly aggregate of
transportation, living and representation allowances the retiree was receiving
on the date of retirement. (In Re: Amount of the Monthly Pension of Judges
and Justices, supra)

The rationale behind the veto which implies that Justices and Constitutional
officers are unduly favored is, again, a misimpression.
Immediately, we can state that retired Armed Forces officers and enlisted
men number in the tens of thousands while retired Justices are so few they
can be immediately identified. Justices retire at age 70 while military men
retire at a much younger age some retired Generals left the military at age 50
or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to
both groups. Any ideas arising from an alleged violation of the equal
protection clause should first be directed to retirees in the military or civil
service where the reason for the retirement provision is not based on
indubitable and constitutionally sanctioned grounds, not to a handful of
retired Justices whose retirement pensions are founded on constitutional
reasons.
 219

The provisions regarding retirement pensions of justices arise from the

package of protections given by the Constitution to guarantee and preserve
the independence of the Judiciary.
The Constitution expressly vests the power of judicial review in this Court.
Any institution given the power to declare, in proper cases, that act of both
the President and Congress are unconstitutional needs a high degree of
independence in the exercise of its functions. Our jurisdiction may not be
reduced by Congress. Neither may it be increased without our advice and
concurrence. Justices may not be removed until they reach age 70 except
through impeachment. All courts and court personnel are under the
administrative supervision of the Supreme Court. The President may not
appoint any Judge or Justice unless he or she has been nominated by the
Judicial and Bar Council which, in turn, is under the Supreme Court's
supervision. Our salaries may not be decreased during our continuance in
office. We cannot be designated to any agency performing administrative or
quasi-judicial functions. We are specifically given fiscal autonomy. The
Judiciary is not only independent of, but also co-equal and coordinate with
the Executive and Legislative Departments. (Article VIII and section 30,
Article VI, Constitution)

Any argument which seeks to remove special privileges given by law to

former Justices of this Court and the ground that there should be no "grant of
distinct privileges" or "preferential treatment" to retired Justices ignores these
provisions of the Constitution and, in effect, asks that these Constitutional
provisions on special protections for the Judiciary be repealed. The integrity
of our entire constitutional system is premised to a large extent on the
independence of the Judiciary. All these provisions are intended to preserve
that independence. So are the laws on retirement benefits of Justices.

One last point.

The Office of the Solicitor General argues that:

. . . Moreover, by granting these benefits to retired Justices implies that public

funds, raised from taxes on other citizens, will be paid off to select
individuals who are already leading private lives and have ceased performing
public service. Said the United States Supreme Court, speaking through Mr.
Justice Miller: "To lay with one hand the power of the government on the
property of the citizen, and with the other to bestow upon favored individuals
. . . is nonetheless a robbery because it is done under the forms of law . . ."
(Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16)

The above arguments are not only specious, impolite and offensive;
they certainly are unbecoming of an office whose top officials are supposed
to be, under their charter, learned in the law.

Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal,

Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad
Santos, and, in fact, all retired Justices of the Supreme Court and the Court of
Appeals may no longer be in the active service. Still, the Solicitor General
and all lawyers under him who represent the government before the two
courts and whose predecessors themselves appeared before these retirees,
should show some continuing esteem and good manners toward these
Justices who are now in the evening of their years.
 220

All that the retirees ask is to be given the benefits granted by law. To
characterize them as engaging in "robbery" is intemperate, abrasive, and
disrespectful more so because the argument is unfounded.
If the Comment is characteristic of OSG pleadings today, then we are sorry to
state that the then quality of research in that institution has severely
deteriorated.
In the first place, the citation of the case is, wrong. The title is not LAW
Association v. Topeka but Citizen's Savings and Loan Association of
Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455
[1874]. Second, the case involved the validity of a statute authorizing cities
and counties to issue bonds for the purpose of building bridges, waterpower,
and other public works to aid private railroads improve their services. The
law was declared void on the ground that the right of a municipality to
impose a tax cannot be used for private interests.

The case was decided in 1874. The world has turned over more than 40,000
times since that ancient period. Public use is now equated with public
interest. Public money may now be used for slum clearance, low-cost
housing, squatter resettlement, urban and agrarian reform where only private
persons are the immediate beneficiaries. What was "robbery" in 1874 is now
called "social justice." There is nothing about retirement benefits in the cited
case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia
which could not even spell "loan" correctly. Good lawyers are expected to go
to primary sources and to use only relevant citations.

The Court has been deluged with letters and petitions by former colleagues in
the Judiciary requesting adjustments in their pensions just so they would be
able to cope with the everyday living expenses not to mention the high cost
of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J.
Santiago v. COA, (G.R. No. 92284, July 12, 1991);

Retirement laws should be interpreted liberally in favor of the retiree because

their intention is to provide for his sustenance, and hopefully even comfort,
when he no longer has the stamina to continue earning his livelihood. After
devoting the best years of his life to the public service, he deserves the
appreciation of a grateful government as best concretely expressed in a
generous retirement gratuity commensurate with the value and length of his
services. That generosity is the least he should expect now that his work is
done and his youth is gone. Even as he feels the weariness in his bones and
glimpses the approach of the lengthening shadows, he should be able to
luxuriate in the thought that he did his task well, and was rewarded for it.

For as long as these retired Justices are entitled under laws which continue to
be effective, the government can not deprive them of their vested right to the
payment of their pensions.
WHEREFORE, the petition is hereby GRANTED. The questioned veto is
SET ASIDE as illegal and unconstitutional. The vetoed provisions of the
1992 Appropriations Act are declared valid and subsisting. The respondents
are ordered to automatically and regularly release pursuant to the grant of
fiscal autonomy the funds appropriated for the subject pensions as well as the
other appropriations for the Judiciary. The resolution in Administrative
Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be
implemented as promulgated.
 221

2) What is a "pocket veto?"

3) What are the three ways by which a bill becomes a law?

3. PHILCONSA VS. ENRIQUEZ, 235 SCRA 506

What is the so-called “executive impoundment”?

It means that although an item of appropriation is not vetoed by the

President, he however refuses for whatever reason, to spend funds made possible
by Congress. It is the failure to spend or obligate budget authority of any type.
Proponents of impoundment have invoked at least three (3) principal sources of
authority of the President. [1] authority to impound given to him by Congress,
either expressly or impliedly; [2] the executive power drawn from his power as
Commander-in-chief; and [3] the Faithful execution clause of the Constitution.

Note that in this case the SC held that the Countryside Development Fund
(CDF) of Congressmen and Senators is CONSTITUTIONAL because the same is
“set aside for ‘infrastructure, purchase of ambulances and computers and other
priority projects and activities, and credit facilities to qualified beneficiaries as
proposed and identified by said Senators and Congressmen.

18. Section 28. [1] The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of taxation.

[2] The Congress, may by law, authorize the President to fix

within specified limits, and subject to such limitations and restrictions
as it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the government.

[3] Charitable institutions, churches and parsonages or convents

appurtenant thereto, mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly, and exclusively used
for religious, charitable, or educational purposes shall be exempt from
taxation.

[4] No law granting any tax exemption shall be passed without

the concurrence of a majority of all the members of the Congress.

Section 29. (1) No money shall be paid out of the treasury except in
pursuance of an appropriation made by law.

No public money or property shall be appropriated, applied, paid

or employed…directly or indirectly for the benefit, use, or support of
any sect, denomination, or system of religion…except when such
preacher, priest… is assigned to the AFP, or to any penal institution, or
government orphanage or leprosarium.

All money collected on any tax for a special purpose shall be

treated as a special fund and paid out for such purpose only. If the
purpose for which a special fund was created has been fulfilled or
abandoned, the balance, if any, shall be transferred to the general funds
of the Government.
 222

Read:

1. Garcia vs. Executive Sec., 211 SCRA 219

1-a) PEPSI COLA VS. THE CITY OF BUTUAN, 24 SCRA 789
2) PROVINCE OF ABRA VS. HERNANDO, 107 SCRA 104
3) APOSTOLIC PREFECT OF BAGUIO VS. TREASURER, 71 Phil.
547
4) PASCUAL VS. SECRETARY OF PUBLIC WORKS, 110 Phil. 331
3) AGLIPAY VS. RUIZ, 64 Phil. 201
4) MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987

Respondent Dr. Francisco A. Perez was named outstanding Health

Worker for 1980 by the Ministry of Health on January 22, 1981. Being such
an awardee, Dr. Perez was granted by the Ministry of Health a two-step
salary increase in accordance with the merit increase program as enunciated
in Letter of Instructions (LOI) No. 562. Thereafter, the Ministry of Health
requested the Sangguniang Panglunsod of San Pablo City, which is paying
Dr. Perez' salary in full to appropriate the amount corresponding to the merit
increase in its current budget. For lack of legal basis, the Bureau of Local
Government opposed the proposed merit increase because the provisions of
LOI No. 562 apply only to officials/employees in the national government,
and consequently, awardee Dr. Perez was not entitled thereto, since he is an
employee of the local government as provided for in the charter of San
Pablo City. This prompted Dr. Perez to request the Ministry of Health to
make the corresponding allocation to issue a notice of salary adjustment
effective January 1, 1981. The Minister of Justice, upon a query made by the
Ministry of Health, in his Opinion No. 177, Series of 1981, dated November
20, 1981, acknowledged that the merit increase program applies only to the
officials/employees of the national government but declared Dr. Perez as one
such official or employee and concluded that the Ministry of Health should
pay the merit increase to him. Relying on such opinion, the Ministry of
Health issued to respondent Dr. Perez on December 1, 1981 a notice of
salary adjustment which release of the amount was denied by the Office of
the Budget and Management which insisted that the awardee is an employee
of the local or city government who is not covered by the merit increase
program. Dr. Perez made his appeal therefrom to the Ministry of Health who
forwarded it, recommending favorable action thereon to the Office of the
President of the Philippines. The latter referred the appeal to the Minister of
the Budget who affirmed his earlier decision of disallowing the merit
increase and reiterating the same reasons. A petition for mandamus to
compel the Office of the Budget and Management to pay the merit increase
was filed by Dr. Perez before the lower court which granted the
aforementioned favorable decision, subject matter of the present petition for
review on certiorari before Us by petitioners arguing that:

1. The position of private respondent as the City Health Officer of San

Pablo City is embraced in Sec. 7 of Pres. Decree (P.D.) No. 1136 which
states among other things that the salary plan provided for in Sec. 8 of the
same decree shall cover the City Officer, among other officials, whose salary
shall be paid out of city funds and therefore a local government employee
whose position does not appear in the list of national government employees
defined under another law (P.D. 985).

2. The constitution provides that no money shag be paid out of the

Treasury except in pursuance of an appropriation made by law. Since there
 223

is no such appropriation, the Minister of the Budget cannot be compelled to

release the amount for the payment of the merit salary increase because such
allocation entails the exercise of judgment and discretion of the Minister of
the Budget which cannot be controlled by mandamus.
3. The decision declaring respondent Dr. Perez as an employee of the
national government would have far reaching effects such that all other city
health officers and local officials similarly situated would also be so entitled
to an personal benefits given to national employee. Dr. Perez's exemplary
accomplishment which merited for him the grant to a two-step increase must
yield to the overriding economic consideration of availability of funds which
the government must set aside for the purpose.

We do not agree with the arguments set down by petitioners. Private

respondent invites Our attention to the City Charter of San Pablo City (CA
#5201, Sec. 87, May 7, 1940) more specifically, Art. IV thereof, which
provides that the position of a City Health Officer is not included among the
heads of the regular departments of the city but included among the national
officials performing municipal functions under the direct control of the
Health Minister and not the city mayor as provided for in Art. XIV of the
same charter. Such principle is reiterated in the Decentralization Act of 1967
which shows that the appointing authority is the Health Minister and not the
local officials. Petitioner Minister of the Budget admitted thru the testimony
of its representative, Alice S. Torres, chief of the Compensation and Position
Classification and a specialist thereon that the City Health Officer is under
the administrative and technical supervision of the Ministry of Health (p. 69,
tsn, June 16, 1983, p. 72, Rollo). Be it noted that, Section 7 of PD 1136
relied upon by petitioners provides that the basic salary of the City Health
Officer is paid from city funds. However, the last paragraph of the same Sec.
7, excludes the city health officer from the classification of local
government official as can be gathered from the phrase "... except those
occupied by (a) officials whose compensation is fixed in the constitution,
Presidential Decrees and other laws and (b) officials and employees who are
under the direct supervision and control of the National Government or its
agencies and who are paid wholly or partially from national funds."

Provincial and city health officers are all considered national

government officials irrespective of the source of funds of their salary
because the preservation of health is a national service. Also their positions
are partially funded by the national government. Some are receiving one-
half of their salary from the national funds and the other one-half from local
funds.

We cannot likewise ignore the opinions of the Ministry of Justice cited

by private respondent to wit: 1) Opinion No. 26, Series of 1976 which
categorically rules that "Officials and employees of provincial and city
health offices render service as officials and employees of the Bureau of
Health (Ministry of Health) and they are for that reason not local but
national officials under the direct supervision and control of the Ministry of
Health; 2) Opinion No. 177, Series of 1981, which is specific and definitive
that the private respondent is a national government employee and the
Ministry of Health should pay the merit increase awarded to him. In this
1981 opinion, it was explained in detail how the said funds corresponding to
his merit increase could be legally disbursed contrary to the unfounded
speculations expressed by the petitioners.
 224

Lastly, there is no basis in petitioner's allegations that they cannot be

compelled by mandamus as the appropriation is not authorized by law and it
is discretionary on the part of the Ministry of the Budget whether or not to
allocate. Respondent Dr. Perez has been proven to be a national government
official, hence covered by the merit promotion plan of the government more
particularly the Health Ministry wherein private respondent is its lone
beneficiary for the year 1980 in Region IV. It thus becomes the ministerial
duty of the Budget Minister to approve the request for allotment. Having
failed to do so, he could be compelled by mandamus.

19. Section 30. No law shall be passed increasing the

appellate jurisdiction of the Supreme Court as provided
in the Constitution without its advice and concurrence.

TERESITA FABIAN VS. HONORABLE ANIANO

DESIERTO, G.R. No. 129742, September 16, 1998)

Regalado, J.

Section 27 of RA 6770 or the Ombudsman Act of 1989 provides:

“In all administrative disciplinary cases, orders, directives

or decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for Certiorari within 10
days from receipt of the written notice of the order, directive or
decision or denial of the Motion for Reconsideration in
accordance with Rule 45 of the Rules of Court”

Issue:

Is Section 27 of RA 6770 constitutional?

Held:

Section 27 of RA 6770 is unconstitutional since it increases the

appellate jurisdiction of the Supreme Court without its advice and consent as
provided under Section 30, Article VI of the 1987 Constitution. As explained
in FIRST LEPANTO CERAMICS INC. VS. CA, 237 SCRA 519, the
aforesaid constitutional provision “was intended to give the Supreme Court
a measure of control over cases placed under its appellate jurisdiction.
Otherwise, the enactment of legislation enlarging its appellate jurisdiction
would unnecessarily burden the Court.”

Appeal of cases decided by the Office of the Ombudsman covered by

Section 27 of RA 6770 shall be filed with the Court of Appeals.

Read: MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987

20. Sections 32. 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 law or part thereof passed by the Congress or local
legislative body after the registration of a petition
therefore signed by at least 10% of the total number of
 225

registered voters, of which every legislative district

must be represented by at least 3% of the registered
voters thereof.

Read again RA 6735 & SANTIAGO VS. COMELEC & PIRMA

PART VII
ARTICLE VII - THE EXECUTIVE DEPARTMENT

Section 1. The executive power shall be vested

in the President of the Philippines.

1. a. Define executive power

b. May the President refuse to enforce a law on the ground that in his opinion
it is unconstitutional?

No. Otherwise, he will be violating the doctrine of separation of powers

because by doing so, he will be arrogating unto himself the power to interpret the
law, not merely to implement it.

Read:
1) L.S. MOON & CO. VS. HARRISON, 43 Phil.38
2) GOV'T. VS. SPRINGER, 50 Phil. 529, read also the separate opinion.
3) VALLEY TRADING VS. CFI, 171 SCRA 501

What is the extent of the executive or administrative orders that may be

issued by the President as the Chief Executive, under the Administrative Code of
1987?

BLAS OPLE VS. RUBEN TORRES, ET AL.

G.R. No. 127685, July 23, 1998

Puno, J.

Facts:

On December 12, 1996, then President FIDEL V. RAMOS issued

Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to

have a Population Reference Number (PRN) generated by the National
Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1. The establishment of the PRN without any law is an

unconstitutional usurpation of the legislative powers of the
Congress of the Philippines;
2. The appropriation of public funds for the implementation of the
said AO is unconstitutional since Congress has the exclusive
authority to appropriate funds for such expenditure; and
 226

3. The AO violates the citizen’s right to privacy protected by the Bill

of Rights of the Constitution.

Held:

1. The AO establishes a system of identification that is all-encompassing in

scope, affects the life and liberty of every Filipino citizens and foreign
residents and therefore, it is supposed to be a law passed by Congress that
implements it, not by an Administrative Order issued by the President.
Administrative Power, which is supposed to be exercised by the
President, is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the
President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. Prescinding from the foregoing
precepts, AO 308 involves a subject that is not appropriate to be covered
by an Administrative Order. An administrative order is an ordinance
issued by the President which relates to specific aspects in the
administrative operation of the government. It must be in harmony with
the law and should be for the sole purpose of implementing the law and
carrying out the legislative policy. The subject of AO 308 therefore is
beyond the power of the President to issue and it is a usurpation of
legislative power.

2. The AO likewise violates the right to privacy since its main purpose is to
provide a “common reference number to establish a linkage among
concerned agencies through the use of BIOMETRICS TECHNOLOGY.
Biometry is the science of the application of statistical methods to
biological facts; a mathematical analysis of a biological data. It is the
confirmation of an individual’s identity through a fingerprint, retinal scan,
hand geometry or facial features. Through the PRN, the government
offices has the chance of building a huge and formidable information
base through the electronic linkage of the files of every citizen. The data,
however, may be gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal information constitutes
a covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms
how these informations gathered shall be handled. It does not provide
who shall control and access the data and under what circumstances and
for what purpose. These factors are essential to safeguard the privacy and
guaranty the integrity of the information. The computer linkage gives
other government agencies access to the information. YET, THERE ARE
NO CONTROLS TO GUARD AGAINST LEAKAGE OF
INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL
PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS
BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR
PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER
PURPOSE, OR WORSE, MANIPULATE THE DATA STORED
WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that

personal information gathered about our people will be used only for
specified purposes thereby violating the citizen’s right to privacy.
 227

Sections 2. No person shall be elected

President unless he is a natural born citizen of
the Philippines, a registered voter, able to read
and write, at least forty years o f age on the day
of the election, and a resident o f the
Philippines for at least ten years immediately
preceding the election.

Section 3. There shall be a Vice President who

shall have the same qualifications and term of
office and be elected with and in the same
manner as the President. He may be removed
from Office in the same manner as the
President.

The Vice President may be appointed as a

Member of the cabinet. Such appointment
requires no confirmation.

Note: Section 13, Art. VII. 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…

Section 8, Article VIII. The Judicial and Bar Council-----Secretary of

Justice..

Section 2, Article XI. The President, VP, …may be removed from office, on
impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust.

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
30th day of June next following their 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 4
years shall be qualified for election to the same office
at any time.

No Vive President shall serve for more than 2

successive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of the service for the
full term for which he was elected.
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….

The candidate having the highest number of

votes shall be proclaimed elected, but in case two or
more shall have an equal number of votes, one of
 228

them shall forthwith be chosen by the vote of a

majority of all the members of both Houses of
Congress voting separately.

Section 5…Oath
Section 6. Residence…Salary may not be
decreased…not increased until after the expiration of
his terms…shall not received any other emolument
from the government of from any source during their
tenure.

Section 7. ..shall assume office at the beginning

of their terms.
…P & VP not qualified, the Senate President shall
act as President or the Speaker, if SP is not yet
qualified..

Congress shall pass a law if the SP & Speaker

are not qualified to act as President…

Section 9. VP is vacant, the President shall

nominate from the Senate of HR and who shall
become VP upon confirmation of majority vote of the
members of the Senate & H of R voting separately.

Section 10. …In case of vacancy in the office

of the President and VP, Congress shall convene on
the 3rd day after the vacancy to enact a law calling for
special election to be held not later than 60 days…the
law is deemed certified under Section 26, par. 2 of
Art. VI and shall become a law upon 3rd reading..
Special elections cannot be postponed but no special
election if the vacancy occurs within 18 months
before the next presidential election.

Section 11. When President transmits to

Congress his written declaration of inability to
perform his duties, the VP shall be acting President
until the President transmits another declaration to
the contrary.

When majority of the members of the cabinet

transmit to the Senate President a written declaration
that the President is unable to perform his duties, the
VP shall act as the President.

If the President transmits to the SP his

declaration that there is no disability, he shall
reassume his post but if the majority of all the
members of the Cabinet still insists that the President
is unable to discharge his powers, CONGRESS
SHALL DECIDE THE ISSUE. IT MUST
CONVENE WITHIN 48 HOURS if not in session
without need of a call.
 229

If 2/3 of both Houses, voting separately,

determines that the President is unable to discharge
his powers, the VP shall act as President. Otherwise,
the President shall continue exercising his powers
and duties of his office.

Section 12. In case of serious illness of the

President, the public shall be informed of the state of
his health. The members of the cabinet in charge of
national security and foreign relations and the Chief
of the AFP shall not be denied access to the
President.

a. Qualifications, disqualifications, term of office, etc., of the President and

Vice-President.

b. See: Sec. 17 of Art. XVIII.

c. Read: PHILIPPINE BAR ASSOCIATION VS. COMELEC, 140 SCRA

453 (The snap presidential election case)

3. Sections 7-12

a. Note the order of succession to the office of the President and Vice
President

b. Query: Is President Gloria Macapagal Arroyo a de jure or a de facto

President? If de jure, how did she succeed? Resignation or permanent disability of
former President Estrada?

JOSEPH EJERCITO ESTRADA VS. DESIERTO, G.R.

Nos. 146710-15 and 146738, March 2, 2001

Puno, J [En Banc]

F A C T S:

1. On 13 November 2000, the Speaker of the House of Representatives

transmitted to the Senate the Articles of Impeachment charging petitioner
Joseph Estrada with bribery, graft and corruption, betrayal of public trust and
culpable violation of the Constitution. The impeachment of petitioner resulted
from disclosures made by Ilocos Sur Governor, Luis Chavit Singson in
October, 2000 that petitioner had received payments from illegal jueteng
operations and excise taxes;

The impeachment trial began on 07 December 2000. A highlight of the

December 2000 hearings was the testimony of CLARISSA OCAMPO of the
Equitable – PCI Bank that she witnessed petitioner affixing the signature of
“JOSE VELARDE” on bank documents involving a P500 M investment
agreement;

2. On 16 January 2001, the issue of whether or not to open what has been dubbed
as the “Second Envelope” arose before the impeachment court. The envelope
allegedly contained proof that petitioner held P3.3 B in a secret bank account
under the name “JOSE VELARDE”. The motion to open the said envelope was
 230

struck down by the senator-judges by a vote of 11-10. The public and private
prosecutors walked out of the trial to protect the ruling. Hours after the
controversial ruling, the public began to rally at the EDSA SHRINE; the rally
continued in the following days;

3. On January 17, 2001, the public prosecutors tendered their collective

resignation to the Speaker. They also filed a Manifestation of WITHDRAWAL
OF APPEARANCE with the Impeachment Court. Thereafter, Senator Roco
moved for the indefinite postponement of the impeachment proceedings. Chief
Justice Davide granted the same;

4. In the afternoon of 19 January, 2001, the Chief of Staff of the AFP withdrew his
support to President Estrada. The same is true with the PNP Chief and majority
of the members of the Estrada Cabinet;

5. In early hours of 20 January 2001, negotiations for the peaceful and orderly
transfer of power began between petitioner’s representatives and that of
respondent GLORIA MACAPAGAL-ARROYO, then Vice President. Later in
the morning, Arroyo reportedly requested the Chief Justice to administer her
oath. The letter, sent through fax was quoted thus by Justice Vitug in his
concurring opinion, as follows:

“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 and 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 Philippines. Accordingly, I would like to
take my oath as President of the Republic before the
Honorable Chief Justice Hilario 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”.

6. At 12 noon, Arroyo was sworn in by Chief Justice Davide as the 14 th President

of the Republic of the Philippines. At 2:30 p.m., petitioner and his family left
Malacanang Palace. Petitioner issued the following statement:

“At 12 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.
 231

It is for this reason that I now leave Malacanang

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 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 beloved

people.

Mabuhay”

“(Sgd.) Joseph Ejercito Estrada”

7. Petitioner also sent copies of the following letter to the Senate President and
Speaker of the House of Representatives on 20 January 2001. The copy for the
House Speaker was sent at 8:30 a.m.. Another copy was transmitted to the
Senate President and received only at 9:00 p.m.

“Sir:

By virtue of the provisions of Section 11, Art. 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.

(Sgd.) Joseph Ejercito Estrada”

8. Prior to the events of January, 2001, 6 cases had been filed before the Office of
the Ombudsman Aniano Desierto. A special panel was created to investigate
these cases. On January 22, 2001, petitioner was directed to file his counter-
affidavit and affidavit of his witnesses;

9. On February 5, 2001, petitioner filed these cases to prohibit the respondent

from investigating the charges of plunder, bribery and graft and corruption on the
ground that he is immune from suit;

10. On February 6, 2001, the petitioner filed the petition docketed as GR No.
146738 for quo warranto against Arroyo praying that he be declared the lawful
President of the Philippines and respondent GMA merely as acting President on
account of his temporary disability.

I S S U E S:

1. DO THE CASES AT BAR INVOLVE A POLITICAL

QUESTION AND ARE BEYOND THE
JURISDICTION OF THE SUPREME COURT TO
DECIDE?
 232

2. DID PETITIONER ESTRADA RESIGN AS

PRESIDENT?
3. IS THE PETITIONER TEMPORARILY UNABLE TO
ACT AS PRESIDENT?
4. DOES THE PETITIONER ENJOY IMMUNITY
FROM SUIT? IF SO, TO WHAT EXTENT?
5. SHOULD THE PROSECUTION OF ESTRADA BE
ENJOINED DUE TO PREJUDICIAL PUBLICITY?

H E L D:

No, the cases do not involve political question. In Tanada vs. Cuenco, 103
Phil. 1051 [1957], it was 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 which full discretionary authority has been delegated to
the legislative and executive branches of the government. It is concerned with
issues dependent upon the wisdom, not the legality of a particular measure.”

The 1987 Constitution narrowed the reach of the political question doctrine
when it expanded the power of judicial review of the 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.

IN support of the contention that the cases involve political questions, the
respondents cited the cases of LAWYER'’ LEAGE FOR A BETTER
PHILIPPINES VS. PRESIDENT CORAZON AQUINO, May 22, 1986 and
related cases. The court pointed out that in those cases, it held that the government
of President Aquino was the result of a successful but peaceful revolution by the
Filipino people. The Freedom Constitution itself declared that the Aquino
government was installed through the direct exercise of the power of the Filipino
people “in defiance of the 1973 Constitution, as amended.” IN contrast, the
Arroyo government is not revolutionary in character. The oath of President Arroyo
took at the EDSA Shrine is an oath under the 1987 Constitution where she swore
to preserve and defend the 1987 Constitution.

The EDSA 1 that installed President Aquino and EDSA II which installed
Arroyo are different because the first 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.

Therefore, the present cases involve legal questions requiring the proper
interpretation of provisions of the 1987 Constitution on the scope of presidential
immunity from suit and the correct calibration of the right of petitioner against
prejudicial publicity.
 233

II

Using the totality test, the SC held that petitioner Estrada resigned as President.

Resignation is not a high level 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. The validity of a resignation is not governed
by any formal requirement as to form. 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.

Since Estrada did not write a letter of resignation before evacuating the
Malacanang Palace on January 20, 2001, the determination of whether he resigned
should be based on his acts and omission before, during and after 20 January
2001. THIS IS THE TOTALITY TEST, THE TOTALITY OF PRIOR,
CONTEMPORANEOUS AND POSTERIOR FACTS AND CIRCUMSTANTIAL
EVIDENCE BEARING MATERIAL RELEVANCE TO THE ISSUE.

The diary of former Executive Secretary Angara as serialized in the

Philippine Daily Inquirer on February 4-6, 2001 gives an “authoritative window
on the state of mind of the petitioner.” These are:

a. On January 19, 2001 at the height of the EDSA protest, Estrada called for a
snap presidential election in May 2001 and made it on record that he will not
be a candidate. It is an indication that he had given up the presidency even at
that time since his term is supposed to be up to 2004;
b. Estrada did not object to the suggestion that he consider a “dignified exit” and
that he be allowed to go abroad with enough funds;
c. Estrada’s statement that he was guaranteed by Chief of Staff Angelo Reyes that
he would be given a 5-day grace period in the palace which shows that he had
reconciled himself to the reality that he had to resign;
d. During the negotiations between the Estrada and Arroyo groups in the early
morning of January 20, 2001, the resignation of the petitioner was treated as a
fact;
e. During the 1st round of negotiations, Estrada said “Pagod na pagod na ako.
Ayoko masyado nang masakit. Pagod na ako sa red tape, intriga”. The court
held that this was a “high grade evidence” that he had resigned. The SC held
that “ayoko na” are words of resignation.
f. The President’s act of leaving the palace on January 20, 2001 confirmed his
resignation. Petitioner’s press release, “his final act and farewell”,
acknowledged the oath-taking of Arroyo as President, his reservation about its
legality. He said he was leaving the palace for the sake of peace and order. He
did not say that he was leaving as a result of a disability and was going to re-
assume the presidency as soon as the disability appears

III

NO.

The court held that the petitioner has in fact resigned and his claim of
inability was laid to rest by Congress. The decision that respondent Arroyo is the
de jure President, made by a co-equal branch of the government, cannot be
reviewed by the Court.

Both Houses of Congress had recognized that Arroyo is the President when
they passed Resolution “expressing their support to the administration of Her
 234

Excellency Gloria Macapagal Arroyo, President of the Philippines” which was

passed on January 24, 2001; another resolution dated January 24, 2001
“expressing full support to the assumption into office by VP Arroyo as President
of the Philippines”; and the Resolution dated February 7, 2001 “confirming
President Arroyo’s nomination of Senator Teopisto Guingona, Jr. as Vice President
of the Philippines.”

Both Houses also sent bills for the New President (GMA) to sign into law.
Therefore, the Court has no jurisdiction to review the claim of temporary
disability and could not revise the decision of Congress recognizing Arroyo as
President without transgressing the principle of separation of powers.

IV

NO.

As a non-sitting President, Estrada enjoys no immunity from the criminal

charges of plunder, bribery and graft and corruption filed against him. Likewise,
the argument that he should first be convicted in the impeachment proceedings
before he could be charged criminally is without merit since the impeachment
court has adjourned indefinitely insofar as the case against him is concerned. To
follow his line of argument would put a perpetual bar against his prosecution. In
fact, the Constitutional Commission in its deliberations show that even if the
case against an impeachable officer has become moot as a result of his
resignation, the proper criminal and civil cases may be filed against him.

Also, as held in RE: SATURNINO BERMUDEZ, 145 SCRA 160, an

incumbent President is immune from suit or from being brought to court BUT
NOT BEYOND. In NIXON VS. FITSGERALD, 457 US 731, the US Supreme
Court held that the immunity of the President from civil damages covers only
official acts. In the 1997 case of CLINTON VS. JONES, 520 US 681, the US
Supreme Court held that the president’s immunity from suits for money damages
arising out of official acts is inapplicable to unofficial conduct.

Finally, the constitutional provision that a public office is a public trust

would be “devalued if we sustain petitioner’s claim that a non-sitting President
enjoys immunity from suit for criminal acts committed during his incumbency.”

NO.

The SC held that the evidence presented by the petitioner is insufficient for
the Court to rule that the preliminary investigation by respondent Desierto be
enjoined. The claim of the petitioner, based on news reports, that the Ombudsman
had prejudged his case is not sufficient ground to stop the investigation. As held in
MARTELINO VS. ALEJANDRO, 32 SCRA 106, “to warrant a finding of
prejudicial publicity, there must be an actual prejudice---there must be allegation
and proof that the judges have been unduly influenced. The accuracy of the
reports cited by the petitioner could not be the subject of judicial notice since the
Ombudsman is entitled to the presumption of good faith and regularity in the
performance of official duty.

(NOTE: On April 7, 2001, the Motion for Reconsideration of Estrada of the above
decision was denied for lack of merit.)
 235

4. Section 13. The President, VP, Members of the Cabinet or their assistants shall
not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure.. They shall not during their tenure, directly or
indirectly practice any profession, participate in any business or be financially
interested in any contract with…the government or any government owned or
controlled corporation or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

Read: 1. PUNZALAN VS. MENDOZA, 140 SCRA 153

2. ADAZA VS. PACANA, 135 SCRA 431
3. Opinion No. 155, Series of 1988 by the Secretary of Justice
4. Executive Order No. 284
5. Civil Liberties Union vs. Exec. Sec., February 22, 1991

DENNIS FUNA VS. EXECUTIVE SECRETARY

EDUARDO ERMITA, G.R. No. 184740, February 11,
2010

VILLARAMA, JR., J.:

This is a petition for certiorari, prohibition and mandamus

under Rule 65 with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, to declare as
unconstitutional the designation of respondent Undersecretary
Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime
Industry Authority (MARINA).

FACTS:

On October 4, 2006, President Gloria Macapagal-Arroyo

appointed respondent Maria Elena H. Bautista (Bautista) as
Undersecretary of the Department of Transportation and
Communications (DOTC), vice Agustin R. Bengzon. Bautista was
designated as Undersecretary for Maritime Transport of the
department under Special Order No. 2006-171 dated October 23,
2006.

On September 1, 2008, following the resignation of then

MARINA Administrator Vicente T. Suazo, Jr., Bautista was
designated as Officer-in-Charge (OIC), Office of the Administrator,
MARINA, in concurrent capacity as DOTC Undersecretary.

On October 21, 2008, Dennis A. B. Funa in his capacity as

taxpayer, concerned citizen and lawyer, filed the instant petition
challenging the constitutionality of Bautista’s
appointment/designation, which is proscribed by the prohibition
on the President, Vice-President, the Members of the Cabinet, and
their deputies and assistants to hold any other office or
employment.

On January 5, 2009, during the pendency of this petition,

Bautista was appointed Administrator of the MARINA vice
Vicente T. Suazo, Jr. and she assumed her duties and
responsibilities as such on February 2, 2009.

ISSUE:
 236

Whether or not Bautista’s concurrent positions as DOTC

Undersecretary and MARINA OIC is in violation of Section 13,
Article VII of the 1987 Constitution.

HELD:

The petition is meritorious.

On petitioner’s personality to sue as a mere taxpayer:

The courts’ power of judicial review, like almost all other

powers conferred by the Constitution, is subject to several
limitations, namely: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging
the act must have “standing” to challenge; he must have a personal
and substantial interest in the case, such that he has sustained or will
sustain, direct injury as a result of its enforcement; (3) the question
of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very
lis mota of the case. Respondents assert that the second requisite
is absent in this case.

Generally, a party will be allowed to litigate only when (1) he

can show that 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 a favorable action. The question
on standing is whether such parties have “alleged such a personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
constitutional questions.”

In David v. Macapagal-Arroyo, summarizing the rules culled

from jurisprudence, we held that 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.
[EMPHASIS SUPPLIED.]

Petitioner having alleged a grave violation of the

constitutional prohibition against Members of the Cabinet, their
deputies and assistants holding two (2) or more positions in
government, the fact that he filed this suit as a concerned citizen
sufficiently confers him with standing to sue for redress of such
illegal act by public officials.

The other objection raised by the respondent is that the

resolution of this case had been overtaken by events considering the
effectivity of respondent Bautista’s appointment as MARINA
 237

Administrator effective February 2, 2009 and her relinquishment of

her former position as DOTC Undersecretary for Maritime
Transport.

A moot and academic case is one that ceases to present a

justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on
ground of mootness. However, as we held in Public Interest
Center, Inc. v. Elma, supervening events, whether intended or
accidental, cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not
hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar, and public.

Undersecretary Bautista’s designation as MARINA OIC falls

under the stricter prohibition under Section 13, Article VII of
the 1987 Constitution.

Resolution of the present controversy hinges on the correct

application of Section 13, Article VII of the 1987 Constitution,
which provides:

SEC. 13. The President, Vice-President, the Members of

the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the
conduct of their office.

On the other hand, Section 7, paragraph (2), Article IX-B

reads:

SEC. 7. x x x

Unless otherwise allowed by law or the primary functions

of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

In Civil Liberties Union, a constitutional challenge was

brought before this Court to nullify EO No. 284 issued by then
President Corazon C. Aquino on July 25, 1987, which included
Members of the Cabinet, undersecretaries and assistant secretaries
in its provisions limiting to two (2) the positions that appointive
officials of the Executive Department may hold in government and
government corporations. Interpreting the above provisions in the
light of the history and times and the conditions and circumstances
under which the Constitution was framed, this Court struck down as
unconstitutional said executive issuance, saying that it actually
allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of
the 1987 Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.
 238

Noting that the prohibition imposed on the President

and his official family is all-embracing, the disqualification was
held to be absolute, as the holding of “any other office” is not
qualified by the phrase “in the Government” unlike in Section 13,
Article VI prohibiting Senators and Members of the House of
Representatives from holding “any other office or employment in
the Government”; and when compared with other officials and
employees such as members of the armed forces and civil service
employees, we concluded thus:

These sweeping, all-embracing prohibitions imposed on the

President and his official family, which prohibitions are not
similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a
class by itself and to impose upon said class stricter
prohibitions.
Such intent of the 1986 Constitutional Commission to be
stricter with the President and his official family was also succinctly
articulated by Commissioner Vicente Foz after Commissioner
Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz
Commented, “We actually have to be stricter with the President and
the members of the Cabinet because they exercise more powers and,
therefore, more checks and restraints on them are called for because
there is more possibility of abuse in their case.”
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or
by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words,
Section 7, Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in
the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood
as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment.
Verily, wherever the language used in the constitution is prohibitory,
it is to be understood as intended to be a positive and unequivocal
negation. The phrase “unless otherwise provided in this
Constitution” must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the
Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII;
and, the Secretary of Justice being ex-officio member of the Judicial
and Bar Council by virtue of Section 8 (1), Article VIII.
[EMPHASIS SUPPLIED.]
 239

Respondent Bautista being then the appointed

Undersecretary of DOTC, she was thus covered by the stricter
prohibition under Section 13, Article VII and consequently she
cannot invoke the exception provided in Section 7, paragraph 2,
Article IX-B where holding another office is allowed by law or the
primary functions of the position. Neither was she designated OIC
of MARINA in an ex-officio capacity, which is the exception
recognized in Civil Liberties Union.

The prohibition against holding dual or multiple offices or

employment under Section 13, Article VII of the 1987 Constitution
was held inapplicable 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 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. Apart from their
bare assertion that respondent Bautista did not receive any
compensation when she was OIC of MARINA, respondents failed
to demonstrate clearly that her designation as such OIC was in an
ex-officio capacity as required by the primary functions of her office
as DOTC Undersecretary for Maritime Transport.

Given the vast responsibilities and scope of administration of

the Authority, we are hardly persuaded by respondents’ submission
that respondent Bautista’s designation as OIC of MARINA was
merely an imposition of additional duties related to her primary
position as DOTC Undersecretary for Maritime Transport. It appears
that the DOTC Undersecretary for Maritime Transport is not even a
member of the Maritime Industry Board, which includes the DOTC
Secretary as Chairman, the MARINA Administrator as Vice-
Chairman, and the following as members: Executive Secretary
(Office of the President), Philippine Ports Authority General
Manager, Department of National Defense Secretary, Development
Bank of the Philippines General Manager, and the Department of
Trade and Industry Secretary.

Finally, the Court similarly finds respondents’ theory that

being just a “designation,” and temporary at that, respondent
Bautista was never really “appointed” as OIC Administrator of
MARINA, untenable. In Binamira v. Garrucho, Jr., we
distinguished between the terms appointment and designation, as
follows:

Appointment may be defined as the selection, by the

authority vested with the power, of an individual who is to exercise
the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the
person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes
merely the imposition by law of additional duties on an incumbent
official, as where, in the case before us, the Secretary of Tourism is
designated Chairman of the Board of Directors of the Philippine
Tourism Authority, or where, under the Constitution, three Justices
of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of
Representatives. It is said that appointment is essentially executive
while designation is legislative in nature.

Designation may also be loosely defined as an appointment

because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the
term. However, where the person is merely designated and not
 240

appointed, the implication is that he shall hold the office only in a

temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an acting
or temporary appointment, which does not confer security of
tenure on the person named. [EMPHASIS SUPPLIED.]

Clearly, respondents’ reliance on the foregoing definitions is

misplaced considering that the above-cited case addressed the issue of
whether petitioner therein acquired valid title to the disputed position
and so had the right to security of tenure. It must be stressed though
that while the designation was in the nature of an acting and temporary
capacity, the words “hold the office” were employed. Such holding of
office pertains to both appointment and designation because the
appointee or designate performs the duties and functions of the office.
The 1987 Constitution in prohibiting dual or multiple offices, as well
as incompatible offices, refers to the holding of the office, and not to
the nature of the appointment or designation, words which were not
even found in Section 13, Article VII nor in Section 7, paragraph 2,
Article IX-B. To “hold” an office means to “possess or occupy” the
same, or “to be in possession and administration,” which implies
nothing less than the actual discharge of the functions and duties of the
office.

The disqualification laid down in Section 13, Article VII is

aimed at preventing the concentration of powers in the Executive
Department officials, specifically the President, Vice-President,
Members of the Cabinet and their deputies and assistants. Civil
Liberties Union traced the history of the times and the conditions
under which the Constitution was framed, and construed the
Constitution consistent with the object sought to be accomplished
by adoption of such provision, and the evils sought to be avoided or
remedied. We recalled the practice, during the Marcos regime, of
designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government
agencies and instrumentalities, including government-owned or
controlled corporations. This practice of holding multiple offices or
positions in the government led to abuses by unscrupulous public
officials, who took advantage of this scheme for purposes of self-
enrichment. The blatant betrayal of public trust evolved into one of
the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming
sentiment of the people that the 1986 Constitutional Commission
would draft into the proposed Constitution the provisions under
consideration, which were envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices
and employment. Our declaration in that case cannot be more
explicit:

But what is indeed significant is the fact that although

Section 7, Article IX-B already contains a blanket prohibition
against the holding of multiple offices or employment in the
government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the Cabinet,
their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the
Constitution itself.

Evidently, from this move as well as in the different

phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as
 241

holding other offices or employment in the government or

elsewhere is concerned. [EMPHASIS SUPPLIED.]

Such laudable intent of the law will be defeated and rendered

sterile if we are to adopt the semantics of respondents. It would open
the veritable floodgates of circumvention of an important
constitutional disqualification of officials in the Executive
Department and of limitations on the President’s power of
appointment in the guise of temporary designations of Cabinet
Members, undersecretaries and assistant secretaries as officers-in-
charge of government agencies, instrumentalities, or government-
owned or controlled corporations.

As to respondents’ contention that the concurrent positions of

DOTC Undersecretary for Maritime Transport and MARINA OIC
Administrator are not incompatible offices, we find no necessity for
delving into this matter. Incompatibility of offices is irrelevant in
this case, unlike in the case of PCGG Chairman Magdangal Elma in
Public Interest Center, Inc. v. Elma. Therein we held that Section
13, Article VII is not applicable to the PCGG Chairman or to the
Chief Presidential Legal Counsel, as he is not a cabinet member,
undersecretary or assistant secretary.

WHEREFORE, the petition is GRANTED. The

designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry
Authority, in a concurrent capacity with her position as DOTC
Undersecretary for Maritime Transport, is hereby declared
UNCONSTITUTIONAL for being violative of Section 13,
Article VII of the 1987 Constitution and therefore, NULL and
VOID.

Sections 14 Appointments extended by an Acting President shall remain

effective, unless revoked by the elected President within 90 days from his
assumption of office.

Section 15. Two months immediately before the next presidential election
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety.

(NOTE: Section 9, Article VIII. The President shall issue the appointments
within 90 days from the submission of the list)
Read:
1) AYTONA VS. CASTILLO, 4 SCRA 1
2) PAMANTASAN VS. IAC, 140 SCRA 22
3) IN RE: JUDGE VALLARTA and JUDGE VALENZUELA

ARTURO DE CASTRO VS. JUDICIAL AND BAR COUNCIL,

G.R. No. 191032, March 17, 2010

BERSAMIN, J.:

ISSUES:

May the incumbent President appoint the successor of Chief

Justice Reynato Puno when he retires on May 17, 2010, considering
that Section 15, Article VII (Executive Department) of the
 242

Constitution prohibits the President or Acting President from

making appointments within two months immediately before the
next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety? What is the relevance of Section 4 (1), Article VIII (Judicial
Department) of the Constitution, which provides that any vacancy
in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the
process of screening the candidates nominated or being considered
to succeed Chief Justice Puno, and submit the list of nominees to
the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the
submission of the shortlist of nominees by the JBC?

The main question presented in all the filings herein –

because it involves two seemingly conflicting provisions of the
Constitution – imperatively demands the attention and resolution of
this Court, the only authority that can resolve the question
definitively and finally. The imperative demand rests on the ever-
present need, first, to safeguard the independence, reputation, and
integrity of the entire Judiciary, particularly this Court, an
institution that has been unnecessarily dragged into the harsh
polemics brought on by the controversy; second, to settle once and
for all the doubt about an outgoing President’s power to appoint to
the Judiciary within the long period starting two months before the
presidential elections until the end of the presidential term; and
third, to set a definite guideline for the JBC to follow in the
discharge of its primary office of screening and nominating
qualified persons for appointment to the Judiciary.

HELD:

a. On the personality to sue of petitioners:

The Court rules that the petitioners have each demonstrated

adequate interest in the outcome of the controversy as to vest them
with the requisite locus standi. The issues before us are of
transcendental importance to the people as a whole, and to the
petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of one’s personal interest in
life, because they concern that great doubt about the authority of the
incumbent President to appoint not only the successor of the retiring
incumbent Chief Justice, but also others who may serve in the
Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.

Yet, if any doubt still lingers about the locus standi of any
petitioner, we dispel the doubt now in order to remove any obstacle
or obstruction to the resolution of the essential issue squarely
presented herein. We are not to shirk from discharging our solemn
duty by reason alone of an obstacle more technical than otherwise.
In Agan, Jr. v. Philippine International Air Terminals Co., Inc., we
pointed out: “Standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest.” But even if, strictly speaking,
the petitioners “are not covered by the definition, it is still within
the wide discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving the serious
constitutional questions raised.”
 243

b. Prohibition under Section 15, Article VII does not apply to

appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department),

provides:

Section 15. Two months immediately before the next

presidential elections and up to the end of his term, a President or
Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department),

states:

Section 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. Any
vacancy shall be filled within ninety days from the occurrence
thereof.

In the consolidated petitions, the petitioners, with the

exception of Soriano, Tolentino and Inting, submit that the
incumbent President can appoint the successor of Chief Justice
Puno upon his retirement on May 17, 2010, on the ground that the
prohibition against presidential appointments under Section 15,
Article VII does not extend to appointments in the Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional

Commission reveal that the framers devoted time to meticulously
drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of
the provisions of the Constitution were not arbitrarily or
whimsically done by the framers, but purposely made to reflect
their intention and manifest their vision of what the Constitution
should contain.

The Constitution consists of 18 Articles, three of which

embody the allocation of the awesome powers of government
among the three great departments, the Legislative (Article VI), the
Executive (Article VII), and the Judicial Departments (Article VIII).
The arrangement was a true recognition of the principle of
separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy
member of the Court) explained in his sponsorship speech:

We have in the political part of this Constitution opted for the

separation of powers in government because we believe that the
only way to protect freedom and liberty is to separate and divide the
awesome powers of government. Hence, we return to the separation
of powers doctrine and the legislative, executive and judicial
departments.

As can be seen, Article VII is devoted to the Executive

Department, and, among others, it lists the powers vested by the
Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and

defines the duties and qualifications of Members of the Supreme
 244

Court, among others. Section 4(1) and Section 9 of this Article are
the provisions specifically providing for the appointment of
Supreme Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made by the
President upon the submission of a list of at least three nominees by
the JBC; Section 4(1) of the Article mandates the President to fill
the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained

in Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in
Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII
itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against
the President or Acting President making appointments within two
months before the next presidential elections and up to the end of
the President’s or Acting President’s term does not refer to the
Members of the Supreme Court.

Although Valenzuela came to hold that the prohibition

covered even judicial appointments, it cannot be disputed that the
Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this
Court, a former member of the Constitutional Commission, about
the prohibition not being intended to apply to the appointments to
the Judiciary, which confirmation Valenzuela even expressly
mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in

the genesis of Section 4 (1), Article VIII, viz:

V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present

Constitution discloses that the original proposal was to have an
eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also wished
to ensure that that number would not be reduced for any appreciable
length of time (even only temporarily), and to this end proposed
that any vacancy “must be filled within two months from the date
that the vacancy occurs.” His proposal to have a 15-member Court
was not initially adopted. Persisting however in his desire to make
certain that the size of the Court would not be decreased for any
substantial period as a result of vacancies, Lerum proposed the
insertion in the provision (anent the Court’s membership) of the
same mandate that “IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM
OCCURRENCE THEREOF.” He later agreed to suggestions to
make the period three, instead of two, months. As thus amended,
the proposal was approved. As it turned out, however, the
Commission ultimately agreed on a fifteen-member Court. Thus it
was that the section fixing the composition of the Supreme
Court came to include a command to fill up any vacancy therein
within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction

that any “vacancy shall be filled within ninety days” (in the last
sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in stronger
 245

negative language - that “a President or Acting President shall not

make appointments…”

The commission later approved a proposal of Commissioner

Hilario G. Davide, Jr. (now a Member of this Court) to add to what
is now Section 9 of Article VIII, the following paragraph: “WITH
RESPECT TO LOWER COURTS, THE PRESIDENT SHALL
ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM
THE SUBMISSION OF THE LIST” (of nominees by the Judicial
and Bar Council to the President). Davide stated that his purpose
was to provide a “uniform rule” for lower courts. According to
him, the 90-day period should be counted from submission of the
list of nominees to the President in view of the possibility that the
President might reject the list submitted to him and the JBC thus
need more time to submit a new one.

On the other hand, Section 15, Article VII - which in effect

deprives the President of his appointing power “two months
immediately before the next presidential elections up to the end of
his term” - was approved without discussion.

However, the reference to the records of the Constitutional

Commission did not advance or support the result in Valenzuela. Far
to the contrary, the records disclosed the express intent of the
framers to enshrine in the Constitution, upon the initiative of
Commissioner Eulogio Lerum, “a command [to the President] to fill
up any vacancy therein within 90 days from its occurrence,” which
even Valenzuela conceded. The exchanges during deliberations of
the Constitutional Commission on October 8, 1986 further show
that the filling of a vacancy in the Supreme Court within the 90-day
period was a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the

Supreme Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this

subsection reads: “Any vacancy shall be filled within ninety
days from the occurrence thereof.”

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to

fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the

fact that in the past 30 years, seldom has the Court had a
complete complement.

Moreover, the usage in Section 4(1), Article VIII of the word

shall – an imperative, operating to impose a duty that may be
enforced – should not be disregarded. Thereby, Sections 4(1)
imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90 days
from the occurrence of the vacancy. The failure by the President to
do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for

the President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish a definite mandate for
the President as the appointing power, and cannot be defeated by
mere judicial interpretation in Valenzuela to the effect that Section
15, Article VII prevailed because it was “couched in stronger
 246

negative language.” Such interpretation even turned out to be

conjectural, in light of the records of the Constitutional
Commission’s deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is

hardly warranted. According to an authority on statutory
construction:

xxx the court should seek to avoid any conflict in the

provisions of the statute by endeavoring to harmonize and reconcile
every part so that each shall be effective. It is not easy to draft a
statute, or any other writing for that matter, which may not in some
manner contain conflicting provisions. But what appears to the
reader to be a conflict may not have seemed so to the drafter.
Undoubtedly, each provision was inserted for a definite reason.
Often by considering the enactment in its entirety, what appears to
be on its face a conflict may be cleared up and the provisions
reconciled.

Consequently, that construction which will leave every word

operative will be favored over one which leaves some word or
provision meaningless because of inconsistency. But a word should
not be given effect, if to do so gives the statute a meaning contrary
to the intent of the legislature. On the other hand, if full effect
cannot be given to the words of a statute, they must be made
effective as far as possible. Nor should the provisions of a statute
which are inconsistent be harmonized at a sacrifice of the legislative
intention. It may be that two provisions are irreconcilable; if so, the
one which expresses the intent of the law-makers should control.
And the arbitrary rule has been frequently announced that where
there is an irreconcilable conflict between the different provisions
of a statute, the provision last in order of position will prevail, since
it is the latest expression of the legislative will. Obviously, the rule
is subject to deserved criticism. It is seldom applied, and probably
then only where an irreconcilable conflict exists between different
sections of the same act, and after all other means of ascertaining
the meaning of the legislature have been exhausted. Where the
conflict is between two statutes, more may be said in favor of the
rule’s application, largely because of the principle of implied repeal.

In this connection, PHILCONSA’s urging of a revisit and a

review of Valenzuela is timely and appropriate. Valenzuela
arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently
of any other provision, least of all one found in Article VII. It
further ignored that the two provisions had no irreconcilable
conflict, regardless of Section 15, Article VII being couched in the
negative. As judges, we are not to unduly interpret, and should not
accept an interpretation that defeats the intent of the framers.

Consequently, prohibiting the incumbent President from

appointing a Chief Justice on the premise that Section 15, Article
VII extends to appointments in the Judiciary cannot be sustained. A
misinterpretation like Valenzuela should not be allowed to last after
its false premises have been exposed. It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached
herein is entirely incompatible with what Valenzuela decreed.
Consequently, Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.

We reverse Valenzuela.
 247

Second. Section 15, Article VII does not apply as well to all
other appointments in the Judiciary.

There is no question that one of the reasons underlying the

adoption of Section 15 as part of Article VII was to eliminate
midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading
case of Aytona v. Castillo. In fact, in Valenzuela, the Court so
observed, stating that:

xxx it appears that Section 15, Article VII is directed against

two types of appointments: (1) those made for buying votes and (2)
those made for partisan considerations. The first refers to those
appointments made within the two months preceding a Presidential
election and are similar to those which are declared election
offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited by Section 15,

Article VII consists of the so-called “midnight” appointments. In
Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P.
Garcia, who was defeated in his bid for reelection, became no more
than a “caretaker” administrator whose duty was to “prepare for the
orderly transfer of authority to the incoming President.” Said the
Court:

“The filling up of vacancies in important positions, if few,

and so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But
the issuance of 350 appointments in one night and the planned
induction of almost all of them in a few hours before the
inauguration of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential prerogatives,
the steps taken being apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and other conditions, and
thereby to deprive the new administration of an opportunity to
make the corresponding appointments.”

As indicated, the Court recognized that there may well be

appointments to important positions which have to be made even
after the proclamation of the new President. Such appointments,
so long as they are “few and so spaced as to afford some
assurance of deliberate action and careful consideration of the
need for the appointment and the appointee’s qualifications,”
can be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to have
been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona
ruling. It may not unreasonably be deemed to contemplate not
only “midnight” appointments – those made obviously for
partisan reasons as shown by their number and the time of their
making – but also appointments presumed made for the
purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of

Article VII – allowing appointments to be made during the period
of the ban therein provided – is much narrower than that recognized
in Aytona. The exception allows only the making of temporary
appointments to executive positions when continued vacancies will
prejudice public service or endanger public safety. Obviously, the
 248

article greatly restricts the appointing power of the President during

the period of the ban.

Considering the respective reasons for the time frames for

filling vacancies in the courts and the restriction on the President's
power of appointment, it is this Court’s view that, as a general
proposition, in case of conflict, the former should yield to the latter.
Surely, the prevention of vote-buying and similar evils outweighs
the need for avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can abide the
period of the ban which, incidentally and as earlier pointed out,
comes to exist only once in every six years. Moreover, those
occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out, in fact
influence the results of elections and, for that reason, their making
is considered an election offense.

Given the background and rationale for the prohibition in

Section 15, Article VII, we have no doubt that the Constitutional
Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no
longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with
irregularities, or made by an outgoing Chief Executive in the last
days of his administration out of a desire to subvert the policies of
the incoming President or for partisanship, the appointments to the
Judiciary made after the establishment of the JBC would not be
suffering from such defects because of the JBC’s prior processing of
candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the
process of ascertaining the intent or meaning of the enactment,
because the reason for the enactment must necessarily shed
considerable light on “the law of the statute,” i.e., the intent; hence,
the enactment should be construed with reference to its intended
scope and purpose, and the court should seek to carry out this
purpose rather than to defeat it.

Also, the intervention of the JBC eliminates the danger that

appointments to the Judiciary can be made for the purpose of
buying votes in a coming presidential election, or of satisfying
partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial
positions at any level backed by people influential with the
President could not always be assured of being recommended for
the consideration of the President, because they first had to undergo
the vetting of the JBC and pass muster there. Indeed, the creation
of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on
Appointments. This insulating process was absent from the Aytona
midnight appointment.

Third. As earlier stated, the non-applicability of Section 15,

Article VII to appointments in the Judiciary was confirmed by then
Senior Associate Justice Regalado to the JBC itself when it met on
March 9, 1998 to discuss the question raised by some sectors about
the “constitutionality of xxx appointments” to the Court of Appeals
in light of the forthcoming presidential elections. He assured that
“on the basis of the (Constitutional) Commission’s records, the
election ban had no application to appointments to the Court of
 249

Appeals.” This confirmation was accepted by the JBC, which then

submitted to the President for consideration the nominations for the
eight vacancies in the Court of Appeals.

The fault of Valenzuela was that it accorded no weight and

due consideration to the confirmation of Justice Regalado.
Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations
of the Constitutional Commission. Much of the unfounded doubt
about the President’s power to appoint during the period of
prohibition in Section 15, Article VII could have been dispelled
since its promulgation on November 9, 1998, had Valenzuela
properly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice
Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section

14, Section15, and Section 16) concern the appointing powers of
the President.

Section 14 speaks of the power of the succeeding President

to revoke appointments made by an Acting President, and evidently
refers only to appointments in the Executive Department. It has no
application to appointments in the Judiciary, because temporary or
acting appointments can only undermine the independence of the
Judiciary due to their being revocable at will. The letter and spirit of
the Constitution safeguard that independence. Also, there is no law
in the books that authorizes the revocation of appointments in the
Judiciary. Prior to their mandatory retirement or resignation, judges
of the first and second level courts and the Justices of the third level
courts may only be removed for cause, but the Members of the
Supreme Court may be removed only by impeachment.

Section 14, Section 15, and Section 16 are obviously of the

same character, in that they affect the power of the President to
appoint. The fact that Section 14 and Section 16 refer only to
appointments within the Executive Department renders conclusive
that Section 15 also applies only to the Executive Department. This
conclusion is consistent with the rule that every part of the statute
must be interpreted with reference to the context, i.e. that every part
must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment. It is absurd
to assume that the framers deliberately situated Section 15 between
Section 14 and Section 16, if they intended Section 15 to cover all
kinds of presidential appointments. If that was their intention in
respect of appointments to the Judiciary, the framers, if only to be
clear, would have easily and surely inserted a similar prohibition in
Article VIII, most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15

extends to appointments to the Judiciary further undermines the
intent of the Constitution of ensuring the independence of the
Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for
the Presidency in a presidential election. Consequently, the wisdom
of having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and cannot
ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the
appointment by the incumbent President does not run the same risk
of compromising judicial independence, precisely because her term
will end by June 30, 2010.
 250

Sixth. The argument has been raised to the effect that there
will be no need for the incumbent President to appoint during the
prohibition period the successor of Chief Justice Puno within the
context of Section 4 (1), Article VIII, because anyway there will
still be about 45 days of the 90 days mandated in Section 4(1),
Article VIII remaining.

The argument is flawed, because it is focused only on the

coming vacancy occurring from Chief Justice Puno’s retirement by
May 17, 2010. It ignores the need to apply Section 4(1) to every
situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that

there will still be time remaining in the 90-day period under Section
4(1), Article VIII. The fallacy is easily demonstrable, as the OSG
has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be

held on the second Monday of May, letting the elections fall on
May 8, at the earliest, or May 14, at the latest. If the regular
presidential elections are held on May 8, the period of the
prohibition is 115 days. If such elections are held on May 14, the
period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill
the vacancy in the Supreme Court. The result is that there are at
least 19 occasions (i.e., the difference between the shortest possible
period of the ban of 109 days and the 90-day mandatory period for
appointments) in which the outgoing President would be in no
position to comply with the constitutional duty to fill up a vacancy
in the Supreme Court. It is safe to assume that the framers of the
Constitution could not have intended such an absurdity. In fact, in
their deliberations on the mandatory period for the appointment of
Supreme Court Justices under Section 4 (1), Article VIII, the
framers neither discussed, nor mentioned, nor referred to the ban
against midnight appointments under Section 15, Article VII, or its
effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a
vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even

raise a doubt on whether a JBC list is necessary at all for the
President – any President – to appoint a Chief Justice if the
appointee is to come from the ranks of the sitting justices of the
Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be

appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for any vacancy. Such
appointments need no confirmation.

xxx

The provision clearly refers to an appointee coming into the

Supreme Court from the outside, that is, a non-member of the Court
aspiring to become one. It speaks of candidates for the Supreme
Court, not of those who are already members or sitting justices of
the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent

Justices of the Court as Chief Justice?
 251

The question is not squarely before us at the moment, but it

should lend itself to a deeper analysis if and when circumstances
permit. It should be a good issue for the proposed Constitutional
Convention to consider in the light of Senate President Juan Ponce
Enrile’s statement that the President can appoint the Chief Justice
from among the sitting justices of the Court even without a JBC list.

The Decision therefore Grants the petition in A.M. No. 10-2-

5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill

the vacancy to be created by the compulsory retirement of Chief
Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief
Justice;

(c) To submit to the incumbent President the short list of nominees for
the position of Chief Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to

fill other vacancies in the Judiciary and submit to the President the
short list of nominees corresponding thereto in accordance with this
decision.

(NOTE: On April 20, 2010, the Supreme Court, with the same 9-1-2-3 [ 9
Allowing the President to appoint; 1 dissenting; 2 for dismissal of the petitions for
being premature and 3 took no part] DENIED the Motion for Reconsideration for
the reversal of the above Decision filed by the PHILIPPINE BAR ASSOCIATION
and others)

6. Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers are vested
in him in this Constitution. He shall also appoint all other officers of the
government whose appointments are not otherwise provided by law, and those
whom he may be authorized by law to appoint…

The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.

a. Read:

Temporary Appointments for members of the

Cabinet; Ad interim appointments.

SEN. AQUILINO PIMENTEL, et al., vs. EXEC.

SECRETARY EDUARDO ERMITA, et al., 472 SCRA 587

Carpio, J.

Facts:

1. On July 26, 2004, Congress commenced its Regular Session. On August 25,
2004, the Commission on appointments was constituted;
 252

2. While Congress was in session, the President issued appointments as

Acting Secretaries to the following:
a. Arthur Yap to the Department of Agriculture;
b. Alberto Romulo to the Department of Foreign affairs;
c. Raul Gonzales to the Department of Justice;
d. Florencio Abad to the Department of Education;
e. Avelino Cruz, Jr. to the Department of National Defense;
f. Rene Villa to the Department of Agrarian Reform;
g. Joseph Durano to the Department of Tourism; and
h. Michael Defensor to the Department of Environment and Natural
Resources.

3. On September 8, 2004, the petitioners questioned said appointments as

“Acting Secretary” as UNCONSTITUTIONAL since Congress was in
session and it was an act of circumventing the power of the Commission on
Appointments confirm the said appointments. They claimed that “while
Congress is in session, there can be no appointments, whether regular or
acting, to a vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained its consent.”
4. On September 22, 2004, Congress adjourned its session;
5. On September 23, 2004, the president issued “ad-interim appointments” to
the above-named appointees to the departments to which they were
previously appointed in an acting capacity;
6. Thereafter, the respondents moved for the dismissal of this case on the
ground that it is now moot and academic considering the issuance of ad-
interim appointments and subsequent submission of the appointments of the
above-named members of the cabinet to the Commission on Appointments
for confirmation.

I s s u e s:

1. Shall the case be dismissed since it is already moot and academic?

2. Do all the petitioners have the personality to sue?
3. Were the temporary appointments made while Congress was in session to
positions subject of confirmation by the Commission on Appointments
unconstitutional?

H e l d:

1. While it is a rule that courts should not decide moot cases, the courts, as
an exception, will rule on it if it is capable of repetition yet evading
review (TOLENTINO VS. COMELEC, 420 SCRA 438; ACOP VS.
SECRETARY GUINGONA, 383 SCRA 577; VIOLA VS. HON.
ALUNAN III, 277 SCRA 409; ALUNAN III VS. MIRASOL, 276 SCRA
501).

2. Only those members of the Commission on Appointments have the

personality to sue and not the other petitioners who are not. While it was
held in SANLAKAS VS. EXECUTIVE SECRETARY, 421 SCRA 656
that members of Congress have the personality to sue if the President’s
act has the effect of impairing the powers of Congress, the same is not
applicable in this case. This is so because the Commission on
Appointments is independent from Congress itself. President Arroyo’s
issuance of acting appointments while Congress is in session impairs no
power of Congress.
 253

3. The temporary appointments are valid. The power to appoint is

essentially executive in nature and the legislature may not interfere with
the exercise of this executive power except in those instances when the
Constitution expressly allows it to interfere. The essence of an
appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment
of a permanent occupant to the office. In case of vacancy in an office
occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego
of her choice as acting secretary before the permanent appointee of her
choice could assume office. Congress, through a law cannot impose on
the President the obligation of automatically appointing the
Undersecretary as her alter ego. He must be of the President’s confidence
and provided that the temporary appointment does not exceed one (1)
year.

There is a need to distinguish ad interim appointments and appointments

in an acting capacity. While both are effective upon acceptance, ad interim
appointments are extended only during the recess of Congress, whereas
acting appointments may be extended any time that there is a vacancy.
Moreover, ad interim appointments are submitted to the Commission on
Appointments for confirmation or rejection; acting appointments are not
submitted to the Commission on appointments. Acting appointments are a
way of temporarily circumventing the need of confirmation by the
Commission on Appointments.

1. CALDERON VS. CARALE, April 23, 11992

1-a) ULPIANO SARMIENTO III VS. SALVADOR MISON, G.R. No.
79774, Dec. 17, 1987, 156 SCRA 549
2. MARY CONCEPCION-BAUTISTA VS. THE COMMISSION ON
APPOINTMENTS, April, 13,1989
2-A TERESITA DELES, ET AL. VS. COMMISSION ON
APPOINTMENTS, September 4, 1989
3 RAFAEL VS. EMBROIDERY AND APPAREL CONTROL BOARD, 21
SCRA 336
4 OLIVEROS-TORRE VS. BAYOT, 58 SCRA 272;
5 . TARROSA VS. SINGSON, May 25, 1994;
6 NIERE VS. CFI, 54 SCRA 165

b. Distinguish adjournment from recess.

c. Differentiate the status of an appointment made by the President while

Congress is in session compared to that when it is in recess.

7. Section 17, The President shall have control of all the executive departments ,
bureaus and offices. He shall ensure that the laws be faithfully executed.

President’s Control over the executive

department; usurpation of legislative powers
and infringement on the citizen’s right to
privacy
 254

KILUSANG MAYO UNO VS. EXECUTIVE

SECRETARY EDUARDO ERMITA, ET AL., April 19,
2006 & June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY

EDUARDO ERMITA, ET AL., April 19, 2006 & June 20,
2006

Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that

mandates the Adoption of a Unified, Multi-purpose Identification System by all
Government Agencies in the Executive Department. This is so despite the fact that
the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE
SECRETARY RUBEN TORRES Administrative Order No. 308[National
computerized Identification Reference System] issued by then President Fidel V.
Ramos that the same is unconstitutional because “a national ID card system
requires legislation because it creates a new national data collection and card
issuance system, where none existed before”. The Supreme Court likewise held
that EO 308 as unconstitutional for it violates the citizen’s right to privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation No. 420
is unconstitutional on two (2) grounds:

a. usurpation of legislative powers; and

b. it infringes on the citizen’s right to privacy

Held:

1. The issuance by the President of Proclamation No. 420 is not a

usurpation of legislative powers. This is so because EO 420 applies
only to government entities that already maintain ID systems and
issue ID cards pursuant to their regular functions…and does not
grant such government entities any power that they do not already
posses under existing laws. It is not similar to AO 308 because it
does not create a notional ID system since it the same applies only
to the executive branch of the government, including government
owned and controlled corporations but not the judiciary nor the
independent constitutional commissions. This only shows that EO
420 does not establish a national ID system because legislation is
needed to establish a single ID system which is compulsory to all
branches of the government. EO 420 makes existing sectoral card
systems of the government entities like the GSIS, SSS, Philhealth
and Land Transportation Office less costly, more efficient, reliable
and user-friendly to the public. Finally, the issuance of
Proclamation No. 420 is a proper subject of executive issuance
under the President’ constitutional power of control over
government entities in the executive department as well as under
the President’s constitutional duty to ensure that laws are faithfully
executed.

2. The said Executive Order No. 420 does not violate the citizen’s
right to privacy since it does not require all the citizens to be issued
a national ID as what happened in AO 308. Only those dealing or
 255

employed with the said government entities who are required to

provide the required information for the issuance of the said ID.

a. Distinguish the power of control over the power of supervision

b. Read:
1. Santos vs. Exec. Sec., April 10, 1992
1-a. Maceda vs. Macaraig, Jr., 197 SCRA 771
1-b. Echeche vs. CA, 198 SCRA 577

The act of the Executive Secretary in reversing the decision of the

Secretary of the DENR allowing the payment of the backwages of petitioner
is considered an act of the President and therefore valid in accordance with
the doctrine of qualified political agency.

1-c. Ganzon vs. CA, 200 SCRA 271

The petitions of Mayor Ganzon originated from a series of

administrative complaints, ten in number, filed against him by various city
officials sometime in 1988, on various charges, among them, abuse of
authority, oppression, grave misconduct, disgraceful and immoral conduct,
intimidation, culpable violation of the Constitution, and arbitrary detention.
1 The personalities involved are Joceleehn Cabaluna, a clerk at the city
health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza,
Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando
Dabao, Dan Dalido, German Gonzales, Larry Ong, and Eduardo Pefia
Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a
barangay tanod.

Another administrative case was filed by Pancho Erbite, a barangay

tanod, appointed by former mayor Rosa O. Caram. On March 13, 1988,
without the benefit of charges filed against him and no warrant of arrest was
issued, Erbite was arrested and detained at the City Jail of Iloilo City upon
orders of petitioner. In jail, he was allegedly mauled by other detainees
thereby causing injuries He was released only the following day.

Finding probable grounds and reasons, the respondent issued a

preventive suspension order on August 11, 1988 to last until October
11,1988 for a period of sixty (60) days.

Then the next investigation was set on September 21, 1988 and the
petitioner again asked for a postponement to September 26,1988. On
September 26, 1988, the complainants and petitioner were present, together
with their respective counsel. The petitioner sought for a postponement
which was denied. In these hearings which were held in Mala the petitioner
testified in Adm. Case No. C-10298 and 10299. He was again ordered
suspended.

We come to the core question: Whether or not the Secretary of Local

Government, as the President's alter ego, can suspend and/or remove local
officials.
It is the petitioners' argument that the 1987 Constitution no longer
allows the President, as the 1935 and 1973 Constitutions did, to exercise the
power of suspension and/or removal over local officials. According to both
petitioners, the Constitution is meant, first, to strengthen self-rule by local
 256

government units and second, by deleting the phrase 21 as may be provided

by law to strip the President of the power of control over local governments.
It is a view, so they contend, that finds support in the debates of the
Constitutional Commission. The provision in question reads as follows:

Sec. 4. The President of the Philippines shall exercise general

supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.

It modifies a counterpart provision appearing in the 1935 Constitution,

which we quote:

Sec. 10. The President shall have control of all the executive
departments, bureaus, or offices, exercise general supervision over all
Local governments as may be provided by law, and take care that the
laws be faithfully executed.

The petitioners submit that the deletion (of "as may be provided by
law") is significant, as their argument goes, since: (1) the power of the
President is "provided by law" and (2) hence, no law may provide for it any
longer.

It is to be noted that in meting out the suspensions under question, the

Secretary of Local Government acted in consonance with the specific legal
provisions of Batas Blg. 337, the Local Government Code, we quote:

Sec. 62. Notice of Hearing. Within seven days after the complaint
is filed, the Minister of local Government, or the sanggunian
concerned, as the case may be, shall require the respondent to submit
his verified answer within seven days from receipt of said complaint,
and commence the hearing and investigation of the case within ten
days after receipt of such answer of the respondent. No investigation
shall be held within ninety days immediately prior to an election, and
no preventive suspension shall be imposed with the said period. If
preventive suspension has been imposed prior to the aforesaid period,
the preventive suspension shall be lifted.

Sec. 63. Preventive Suspension. (1) Preventive suspension may be

imposed by the Minister of Local Government if the respondent is a
provincial or city official, by the provincial governor if the respondent is an
elective municipal official, or by the city or municipal mayor if the
respondent is an elective barangay official.

The issue, as the Court understands it, consists of three questions: (1)
Did the 1987 Constitution, in deleting the phrase "as may be provided by
law" intend to divest the President of the power to investigate, suspend,
discipline, and/or remove local officials? (2) Has the Constitution repealed
Sections 62 and 63 of the Local Government Code? (3) What is the
significance of the change in the constitutional language?

It is the considered opinion of the Court that notwithstanding the

change in the constitutional language, the charter did not intend to divest the
 257

legislature of its right or the President of her prerogative as conferred by

existing legislation to provide administrative sanctions against local
officials. It is our opinion that the omission (of "as may be provided by
law") signifies nothing more than to underscore local governments'
autonomy from congress and to break Congress' "control" over local
government affairs. The Constitution did not, however, intend, for the sake
of local autonomy, to deprive the legislature of all authority over municipal
corporations, in particular, concerning discipline.
The petitioners are under the impression that the Constitution has left the
President mere supervisory powers, which supposedly excludes the power of
investigation, and denied her control, which allegedly embraces disciplinary
authority. It is a mistaken impression because legally, "supervision" is not
incompatible with disciplinary authority as this Court has held

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz.,

No. 6 p. 2884, this Court had occasion to discuss the scope and extent
of the power of supervision by the President over local government
officials in contrast to the power of control given to him over
executive officials of our government wherein it was emphasized that
the two terms, control and supervision, are two different things which
differ one from the other in meaning and extent. Thus in that case the
Court has made the following digression: "In administration law
supervision means overseeing or the power or authority of an officer to
see that subordinate officers perform their duties. If the latter fail or
neglect to fulfill them the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify
of set aside what a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former for that of the
latter." But from this pronouncement it cannot be reasonably inferred
that the power of supervision of the President over local government
officials does not include the power of investigation when in his
opinion the good of the public service so requires, as postulated in
Section 64(c) of the Revised Administrative Code. ...

xxx xxx xxx

"Control" has been defined as "the power of an officer to alter or

modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former for test of the latter." 36 "Supervision" on the other hand means
"overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. 37 As we held, 38 however,
"investigating" is not inconsistent with "overseeing", although it is a
lesser power than "altering". The impression is apparently exacerbated
by the Court's pronouncements in at least three cases, Lacson v.
Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and
possibly, a fourth one, Pelaez v. Auditor General.42 In Lacson, this
Court said that the President enjoyed no control powers but only
supervision "as may be provided by law," 43 a rule we reiterated in
Hebron, and Mondano. In Pelaez, we stated that the President "may
not . . . suspend an elective official of a regular municipality or take
any disciplinary action against him, except on appeal from a decision
of the corresponding provincial board." 44 However, neither Lacson
nor Hebron nor Mondano categorically banned the Chief Executive
 258

from exercising acts of disciplinary authority because she did not

exercise control powers, but because no law allowed her to exercise
disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove

or suspend municipal officers is without doubt not well taken.
Removal and suspension of public officers are always controlled
by the particular law applicable and its proper construction
subject to constitutional limitations.

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is

specified by law, the same must be deemed mandatory and adhered to
strictly, in the absence of express or clear provision to the contrary-which
does not et with respect to municipal officers ...

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial
supervision over municipal officials in the provincial governor who is
authorized to "receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption
or other form of maladministration of office, and conviction by final
judgment of any crime involving moral turpitude." And if the charges
are serious, "he shall submit written charges touching the matter to the
provincial board, furnishing a copy of such charges to the accused
either personally or by registered mail, and he may in such case
suspend the officer (not being the municipal treasurer) pending action
by the board, if in his opinion the charge by one affecting the official
integrity of the officer in question." Section 86 of the Revised
Administration Code adds nothing to the power of supervision to be
exercised by the Department Head over the administration of ...
municipalities ... . If it be construed that it does and such additional
power is the same authority as that vested in the Department Head by
section 79(c) of the Revised Administrative Code, then such additional
power must be deemed to have been abrogated by Section 110(l),
Article VII of the Constitution.

The Court does not believe that the petitioners can rightfully point to
the debates of the Constitutional Commission to defeat the President's
powers. The Court believes that the deliberations are by themselves
inconclusive, because although Commissioner Jose Nolledo would exclude
the power of removal from the President, Commissioner Blas Ople would
not.

The Court is consequently reluctant to say that the new Constitution

has repealed the Local Government Code, Batas Blg. 37. As we said,
"supervision" and "removal" are not incompatible terms and one may stand
with the other notwithstanding the stronger expression of local autonomy
under the new Charter. We have indeed held that in spite of the approval of
the Charter, Batas Blg. 337 is still in force and effect.
 259

As the Constitution itself declares, local autonomy means "a more

responsive and accountable local government structure instituted through a
system of decentralization."

NOTE: The successive suspensions of the Mayor, however, was declared invalid
by the Supreme Court.

1-d) MONDANO VS. SILVOSA, 97 Phil. 143

The petitioner is the duly elected and qualified mayor of the

municipality of Mainit, province of Surigao. On 27 February 1954
Consolacion Vda. de Mosende filed a sworn complaint with the Presidential
Complaints and Action Committee accusing him of (1) rape committed on
her daughter Caridad Mosende; and (2) concubinage for cohabiting with her
daughter in a place other than the conjugal dwelling. On 6 March the
Assistant Executive Secretary indorsed the complaint to the respondent
provincial governor for immediate investigation, appropriate action and
report. On 10 April the petitioner appeared before the provincial governor in
obedience to his summons and was served with a copy of the complaint filed
by the provincial governor with provincial board. On the same day, the
provincial governor issued Administrative Order No. 8 suspending the
petitioner from office. Thereafter, the Provincial Board proceeded to hear
the charges preferred against the petitioner over his objection.

The Constitution provides: "The President shall have control of all the
executive departments, bureaus, or offices, exercise general supervision over
all local governments as may be provided by law, and take care that the laws
be faithfully executed." Under this constitutional provision the President has
been invested with the power of control of all the executive departments,
bureaus, or offices, but not of all local governments over which he has been
granted only the power of general supervision as may be provided by law.
The Department head as agent of the President has direct control and
supervision over all bureaus and offices under his jurisdiction as provided
for in section 79 (c) of the Revised Administrative Code, but he does not
have the same control of local governments as that exercised by him over
bureaus and offices under his jurisdiction. Likewise, his authority to order
the investigation of any act or conduct of any person in the service of any
bureau or office under his department is confined to bureaus or offices under
his jurisdiction and does not extend to local governments over which, as
already stated, the President exercises only general supervision as may be
provided by law. If the provisions of section 79 (c) of the Revised
Administrative Code are to be construed as conferring upon the
corresponding department head direct control, direction, and supervision
over all local governments and that for the reason he may order the
investigation of an official of a local government for malfeasance in office,
such interpretation would be contrary to the provisions of paragraph 1,
section 10, Article VII, of the Constitution. If "general supervision over all
local governments" is to be construed as the same power granted to the
Department Head in section 79 (c) of the Revised Administrative Code, then
there would no longer be a distinction or difference between the power of
control and that of supervision. In administrative law supervision means
overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them the
former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an
 260

officer to alter or modify or nullify or set aside what a subordinate officer

had done in the performance of his duties and to substitute the judgment of
the former for that of the latter. Such is the import of the provisions of
section 79 (c) of the Revised Administrative Code and 37 of Act No. 4007.
The Congress has expressly and specifically lodged the provincial
supervision over municipal officials in the provincial governor who is
authorized to "receive and investigate complaints made under oath against
municipal officers for neglect of duty, oppression, corruption or other form
of maladministration of office, and conviction by final judgment of any
crime involving moral turpitude." 2 And if the charges are serious, "he shall
submit written charges touching the matter to the provincial board,
furnishing a copy of such charges to the accused either personally or by
registered mail, and he may in such case suspend the officer (not being the
municipal treasurer) pending action by the board, if in his opinion the charge
be one affecting the official integrity of the officer in question." 3 Section
86 of the Revised Administrative Code adds nothing to the power of
supervision to be exercised by the Department Head over the administration
of . . . municipalities . . .. If it be construed that it does and such additional
power is the same authority as that vested in the Department Head by
section 79 (c) of the Revised Administrative Code, then such additional
power must be deemed to have been abrogated by section 10 (1), Article
VII, of the Constitution.

In Lacson vs. Roque, 49 Off. Gaz. 93, this Court held that the power of the
President to remove officials from office as provided for in section 64 (b) of
the Revised Administrative Code must be done "conformably to law;" and
only for disloyalty to the Republic of the Philippines he "may at any time
remove a person from any position of trust or authority under the
Government of the (Philippine Islands) Philippines." Again, this power of
removal must be exercised conformably to law.

In the indorsement to the provincial governor the Assistant Executive

Secretary requested immediate investigation, appropriate action and report
on the complaint indorsed to him, and called his attention to section 2193 of
the Revised Administrative Code which provides for the institution of
judicial proceedings by the provincial fiscal upon direction of the provincial
governor. If the indorsement of the Assistant Executive Secretary be taken as
a designation of the provincial governor to investigate the petitioner, then he
would only be acting as agent of the Executive, but the investigation to be
conducted by him would not be that which is provided for in sections 2188,
2189 and 2190 of the Revised Administrative Code. The charges preferred
against the respondent are not malfeasances or any of those enumerated or
specified in section 2188 of the Revised Administrative Code, because rape
and concubinage have nothing to do with the performance of his duties as
mayor nor do they constitute or involve" neglect of duty, oppression,
corruption or any other form of maladministration of office." True, they may
involve moral turpitude, but before the provincial governor and board may
act and proceed in accordance with the provisions of the Revised
Administrative Code referred to, a conviction by final judgment must
precede the filing by the provincial governor of charges and trial by the
provincial board. Even the provincial fiscal cannot file an information for
rape without a sworn complaint of the offended party who is 28 years of age
and the crime of concubinage cannot be prosecuted but upon sworn
complaint of the offended spouse. 4 The charges preferred against the
petitioner, municipal mayor of Mainit, province of Surigao, not being those
 261

or any of those specified in section 2188 of the Revised Administrative

Code, the investigation of such charges by the provincial board is
unauthorized and illegal. The suspension of the petitioner as mayor of the
municipality of Mainit is, consequently, unlawful and without authority of
law.

1-e. Carpio vs. Exec. Sec., 206 SCRA 290

1-f. Malayan vs. CA, 213 SCRA 640
6. LACSON-MAGALLANES VS. PANO, 21 SCRA 895

Sec. 10. The President shall have control of the ministries. (1973
Constitution, Art. VII)

Control means "the power of an officer to alter or modify or nullify, or

set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter."
(Hebron vs. Reyes, 104 Phil. 175) The President can, by virtue of his power
of control, review, modify, alter or nullify any action, or decision of his
subordinate in the executive departments, bureaus or offices under him.
(Oliveros-Torre vs. Bayot, 58 SCRA 272; Ang-Angco vs. Castillo, et al., 118
Phil. 1468). He can exercise this power motu proprio without need of any
appeal from any party. (Oliveros-Torre vs. Bayot, supra).

The President is not expected to perform in person an the multifarious

executive and administrative functions. The Office of the Executive
Secretary is an auxillary unit which assists the President. Under our
constitutional set-up, the Executive Secretary acts for and in behalf of the
President: and by authority of the President, he has undisputed jurisdiction
to affirm, modify, or even reverse any order of the Secretary of Natural
Resources and other Cabinet Secretaries. Where the Executive Secretary
acts "by authority of the President" his decision is that of the President.
(Lacson-Magallanes Co., Inc. vs. Pano, 21 SCRA 895).

3) LACSON VS. ROQUE, 92 Phil. 456

4) VILLALUZ VS. ZALDIVAR, 15 SCRA 710
5) VILLENA VS. SECRETARY OF INTERIOR, 67 Phil. 451
6) ALAJAR VS. ALBA, 100 Phil. 683
7) FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757
8) OLIVEROS TORRE VS. BAYOT, 58 SCRA 272

c. What is the doctrine of Qualified Political agency? (see the separate

opinion of Former Chief Justice FERNANDO in the LACSON- MAGALLANES
VS. PANO CASE)

d. Powers which must be exercised personally by the President and could and
could not be delegated to any cabinet member?

Doctrine of qualified political agency;

personality to sue; when the said doctrine does
not apply

CONSTANTINO and the FREEDOM FROM DEBT

COALITION VS. CUISIA, et al., 472 SCRA 505

Tinga, J.
 262

F a c t s:

The petition seeks to stop the respondents from executing additional debt-
relief contracts or foreign borrowings in connection with the Philippine
Comprehensive Financing Program for 1992 and to compel the Secretary of
Justice to institute criminal and administrative cases against respondents.

The respondents negotiated with the foreign commercial bank creditors a

multi-option financing package in connection with the country’s foreign debt.
This includes a cash buyback of portions of the Philippine foreign debt at a
discount. The second option allows creditors to convert existing Philippine debt
instruments into bonds or securities. Petitioners characterize the Financing
Program as beyond the powers of the President under Section 20, Article VII of
the Constitution.

I s s u e s:

1. Do the petitioners have the personality to sue?

2. May the respondents contract and guarantee foreign loans on behalf of
the Republic of the Philippines? Stated otherwise, may the President
delegate such power to her subordinates?

H e l d:

1. The petitioners as tax payers have the personality to sue. They are suing
as citizens of the Philippines and a s taxpayers. The recent trend on locus
standi has veered towards a liberal treatment in taxpayer’s suits. In Tatad
vs. Garcia, Jr. [243 SCRA 436] the supreme Court held that taxpayers
are allowed to question contracts entered into by the national government
or government owned and controlled corporations ALLEGEDLY IN
CONTRAVENTION OF LAW.

2. The petitioners claim that the President “alone and personally” can
validly bind the country in contracting foreign debt under Section 20 ,
Article VII of the Constitution. The contention is without merit. The
Secretary of Finance, as alter ego of the President regarding the “sound
and efficient management of the financial resources of the government,
has the power to implement the policy which was publicly expressed by
the president herself. This is in connection with the doctrine of qualified
political agency. While there are instances where the President must act
personally and not through his secretaries like the suspension of the
privilege of habeas corpus, proclamation of martial law or pardoning
power [Villena vs. Secretary of Interior, 67 Phil. 451], negotiation with
foreign creditors may be done by the Secretary of Finance or the
Governor of Central Bank.

The petition was therefore dismissed.

7. Section 18. The President shall be the commander-in-chief of all the 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 60 days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law.
 263

Within 48 hours from the proclamation of martial law or suspension of the

privilege 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 24 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
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within 30 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 3 days, otherwise, he shall be
released.

a. Take special notice of the grounds for the suspension of the privilege of the
writ of Habeas Corpus declaration of Martial Law.

b. Compare it with the provisions of the 1935 and 1973 Constitution on this
subject.
What are the restrictions imposed on the President in the exercise of such
emergency powers? What are the effects of exercises of emergency
powers to the judicial system?

Commander-in-chief provision; Legal standing

to question a presidential proclamation; moot
and academic cases when courts still has to
decide it; state of rebellion and state of
national emergency distinguished

PROF. RANDOLF S. DAVID*, LORENZO TAÑADA

III, RONALD LLAMAS, H. HARRY L. ROQUE, JR.,
JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG VS. GLORIA
MACAPAGAL-ARROYO, AS PRESIDENT
*
Consolidated with six (6) other Petitions
 264

AND COMMANDER-IN-CHIEF, EXECUTIVE

SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR
GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE,

NIÑEZ CACHO-OLIVARES AND TRIBUNE

PUBLISHING CO., INC.,

G.R. No. 171396

May 3, 2006

- versus -

HONORABLE SECRETARY EDUARDO ERMITA AND

HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO,

SANDOVAL-GUTIERREZ, J.:

The cases:

These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5
(G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the Constitution.
Hence, such issuances are void for being unconstitutional.

The Facts:

On February 24, 2006, as the nation celebrated the 20 th Anniversary of the

Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of

the Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that:
“The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . .,” and in my
capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well
as any act of insurrection or rebellion and to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article
12 of the Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:

 265

WHEREAS, over these past months, elements in the political

opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists – the historical enemies of the democratic
Philippine State – who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring

down the President;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State

– by obstructing governance including hindering the growth of the
economy and sabotaging the people’s confidence in government and
their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the

extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes

the defense and preservation of the democratic institutions and the
State the primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017,

thus:

WHEREAS, over these past months, elements in the political

opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists - the historical enemies of the democratic
Philippine State – and who are now in a tactical alliance and engaged
in a concerted and systematic conspiracy, over a broad front, to bring
down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring

down our republican government;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine

State by obstructing governance, including hindering the growth of the
 266

economy and sabotaging the people’s confidence in the government

and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the

extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the

defense and preservation of the democratic institutions and the State
the primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has

been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by

virtue of the powers vested in me under the Constitution as President
of the Republic of the Philippines, and Commander-in-Chief of the
Republic of the Philippines, and pursuant to Proclamation No. 1017
dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to
prevent and suppress acts of terrorism and lawless violence in the
country;

I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to
immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless
violence.

On March 3, 2006, exactly one week after the declaration of a state of

national emergency and after all these petitions had been filed, the President lifted
PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17,

Article XII of the Constitution, Proclamation No. 1017 dated
February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated

February 24, 2006, which were issued on the basis of Proclamation
No. 1017, the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were directed to maintain law and
order throughout the Philippines, prevent and suppress all form of
lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented,

suppressed and quelled the acts lawless violence and rebellion;
 267

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,

President of the Republic of the Philippines, by virtue of the powers
vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

Immediately, the Office of the President announced the cancellation of all

programs and activities related to the 20 th anniversary celebration of Edsa People
Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to
the President’s mind were organized for purposes of destabilization, are cancelled.
Presidential Chief of Staff Michael Defensor announced that “warrantless arrests
and take-over of facilities, including media, can already be implemented.”366

Undeterred by the announcements that rallies and public assemblies would

not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break
up the marching groups, and scatter the massed participants. The same police
action was used against the protesters marching forward to Cubao, Quezon City
and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and
Paseo de Roxas Street in Makati City.367

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of

the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis
of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The
raiding team confiscated news stories by reporters, documents, pictures, and
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City
were stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the building. 368

A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and its
sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is

“meant to show a ‘strong presence,’ to tell media outlets not to connive or do
anything that would help the rebels in bringing down this government.” The PNP
warned that it would take over any media organization that would not follow
366
Petition in G.R. No. 171396, p. 5.
367
Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were broadcast as “breaking news” by the major
television stations of this country.

368
Petition in G.R. No. 171400, p. 11.
 268

“standards set by the government during the state of national emergency.”

Director General Lomibao stated that “if they do not follow the standards – and
the standards are - if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we
will recommend a ‘takeover.’” National Telecommunications’ Commissioner
Ronald Solis urged television and radio networks to “cooperate” with the
government for the duration of the state of national emergency. He asked for
“balanced reporting” from broadcasters when covering the events surrounding
the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage when the national security is threatened. 369

Also, on February 25, 2006, the police arrested Congressman Crispin

Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno
(KMU), while leaving his farmhouse in Bulacan. The police showed a warrant
for his arrest dated 1985. Beltran’s lawyer explained that the warrant, which
stemmed from a case of inciting to rebellion filed during the Marcos regime, had
long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran,

they were told they could not be admitted because of PP 1017 and G.O. No. 5.
Two members were arrested and detained, while the rest were dispersed by the
police.

Retired Major General Ramon Montaño, former head of the Philippine

Constabulary, was arrested while with his wife and golfmates at the Orchard Golf
and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo,

Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to
the custody of the House of Representatives where the “Batasan 5” decided to stay
indefinitely.

Hence, these Petitions.

I s s u e s:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot

and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and
171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of
PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

369
Ibid.
 269

1. PROCEDURAL

I- Moot and Academic Principle

Courts may exercise the power of judicial review only when the following
requisites are present: first, there must be an actual case or controversy; second,
petitioners have to raise a question of unconstitutionality; third, the constitutional
question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.

Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite

legal claims susceptible of judicial resolution. It is “definite and concrete,
touching the legal relations of parties having adverse legal interest;” a real and
substantial controversy admitting of specific relief. The Solicitor General refutes
the existence of such actual case or controversy, contending that the present
petitions were rendered “moot and academic” by President Arroyo’s issuance of
PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events,370 so that a declaration thereon would
be of no practical use or value. Generally, courts decline jurisdiction over such
case371 or dismiss it on ground of mootness.

The Court holds that President Arroyo’s issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP 1017
was operative, the police officers, according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that must be resolved
in the present petitions. It must be stressed that “an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.”

The “moot and academic” principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if:

first, there is a grave violation of the Constitution (Province of Batangas vs.

Romulo, .R. No. 152774, May 27, 2004, 429 SCRA 736).
second, the exceptional character of the situation and the paramount public
interest is involved (Lacson vs. Perez, G.R. No. 147780, May 10, 2001, 357
SCRA 756);

third, when constitutional issue raised requires formulation of controlling

principles to guide the bench, the bar, and the public (Province of Batangas vs.
Romulo); and

370
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
371
Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals,
supra.
 270

fourth, the case is capable of repetition yet evading review (Albaña v.

Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop
v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v.
Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. )

All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
question that the issues being raised affect the public’s interest, involving as they
do the people’s basic rights to freedom of expression, of assembly and of the
press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present petitions, the military and the
police, on the extent of the protection given by constitutional guarantees. 372 And
lastly, respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court

deems it imperative to have a more than passing discussion on legal standing or
locus standi.

Locus standi is defined as “a right of appearance in a court of justice on a

given question.”373 In private suits, standing is governed by the “real-parties-in
interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that “every action must be prosecuted or
defended in the name of the real party in interest.” Accordingly, the “real-party-in
interest” is “the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit.”374 Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.

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.

Case law in most jurisdictions now allows both “citizen” and “taxpayer”
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,375 where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected
by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:376 “In matter of mere public right, however…the
people are the real parties…It is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly pursued and punished, and
372
Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
373
Black’s Law Dictionary, 6th Ed. 1991, p. 941.
374
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
375
275 Ky 91, 120 SW2d 765 (1938).
376
19 Wend. 56 (1837).
 271

that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v.

Jordan377 held that “the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be denied.”

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 State
Supreme Court laid down the more stringent “direct injury” test in Ex Parte
Levitt,378 later reaffirmed in Tileston v. Ullman.379 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.
380
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,381 Manila Race Horse
Trainers’ Association v. De la Fuente,382 Pascual v. Secretary of Public Works 383
and Anti-Chinese League of the Philippines v. Felix.384

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,385 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,386 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. 387

377
232 NC 48, 59 SE2d 359 (1950).
378
302 U.S. 633.
379
318 U.S. 446.
380
65 Phil. 56 (1937).
381
G.R. No. 117, November 7, 1945 (Unreported).
382
G.R. No. 2947, January 11, 1959 (Unreported).
383
110 Phil. 331 (1960).
384
77 Phil. 1012 (1947).
385
84 Phil. 368 (1949) The Court held: “Above all, 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.”
386
L-No. 40004, January 31, 1975, 62 SCRA 275.
387
Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the
enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the
law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses
the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that
objections to taxpayers’ lack of personality to sue may be disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved under
the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial
consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the
Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the
Court ruled that while petitioners are strictly speaking, not covered by the definition of a “proper party,” nonetheless, it has the discretion to waive the
requirement, in determining the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain
taxpayer’s suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file
the instant petition, as the issues involved, pertains to illegal expenditure of public money;
 272

Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the principle of
“transcendental importance.” Pertinent are the following cases:
(1) Chavez v. Public Estates Authority, 388 where the Court ruled
that the enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,389 wherein the

Court held that “given the transcendental importance of the issues
involved, the Court may relax the standing requirements and allow the
suit to prosper despite the lack of direct injury to the parties seeking
judicial review” of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,390 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that “Balikatan 02-01” involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong
391
Alyansang Makabayan v. Zamora, that in cases of transcendental
importance, the cases must be settled promptly and definitely and
standing requirements may be relaxed.

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. the 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.

Significantly, recent decisions show a certain toughening in the Court’s

attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,392 the Court ruled that the status of

Kilosbayan as a people’s organization does not give it the requisite personality to
question the validity of the on-line lottery contract, more so where it does not raise
any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where serious constitutional
questions are involved, the “transcendental importance” to the public of the cases involved demands that they be settled promptly and definitely, brushing
aside technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved concerning as it
does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi.
388
G.R. No. 133250, July 9, 2002, 384 SCRA 152.
389
G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.
390

391
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
Supra.
392
G.R. No. 118910, November 16, 1995, 250 SCRA 130.
 273

allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.

Comelec,393 the Court reiterated the “direct injury” test with respect to concerned
citizens’ cases involving constitutional issues. It held that “there must be a
showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act.”

In Lacson v. Perez,394 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,395 the Court ruled that only the

petitioners who are members of Congress have standing to sue, as they claim that
the President’s declaration of a state of rebellion is a usurpation of the emergency
powers of Congress, thus impairing their legislative powers. As to petitioners
Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged “direct
injury” resulting from “illegal arrest” and “unlawful search” committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
question their legal standing.

It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the “liberality doctrine” on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call for the application of
the “transcendental importance” doctrine, a relaxation of the standing
requirements for the petitioners in the “PP 1017 cases.”

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent.

Settled is the doctrine that the President, during his tenure of office or actual
incumbency,396 may not be sued in any civil or criminal case, and there is no need
to provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. However, this does not mean that the President
is not accountable to anyone. Like any other official, he remains accountable to

393
G.R. No. 132922, April 21, 1998, 289 SCRA 337.
394
G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
395
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
396
From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit is concurrent
only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
 274

the people397 but he may be removed from office only in the mode provided by
law and that is by impeachment.398

B. SUBSTANTIVE
I. Review of Factual Bases

The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached its distilled
point - from the indulgent days of Barcelon v. Baker and Montenegro v.
Castaneda to the volatile era of Lansang v. Garcia, Aquino, Jr. v. Enrile,
and Garcia-Padilla v. Enrile. The tug-of-war always cuts across the line defining
“political questions,” particularly those questions “in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government.” Barcelon and Montenegro were in unison in declaring that the
authority to decide whether an exigency has arisen belongs to the President and
his decision is final and conclusive on the courts. Lansang took the opposite view.
There, the members of the Court were unanimous in the conviction that the Court
has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of
powers, it shifted the focus to the system of checks and balances, “under which
the President is supreme, x x x only if and when he acts within the sphere allotted
to him by the Basic Law, and the authority to determine whether or not he
has so acted is vested in the Judicial Department, which in this respect, is,
in turn, constitutionally supreme.” In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile. There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or
justiciable question. Then came Garcia-Padilla v. Enrile which greatly diluted
Lansang. It declared that there is a need to re-examine the latter case,
ratiocinating that “in times of war or national emergency, the President must be
given absolute control for the very life of the nation and the government is in great
peril. The President, it intoned, is answerable only to his conscience, the People,
and God.”

The Integrated Bar of the Philippines v. Zamora -- a recent case most

pertinent to these cases at bar -- echoed a principle similar to Lansang. While the
Court considered the President’s “calling-out” power as a discretionary power
solely vested in his wisdom, it stressed that “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.”
This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the
new definition of judicial power, the courts are authorized 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.” The latter part of the authority represents
a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of
the government. It speaks of judicial prerogative not only in terms of power but
also of duty.
397
Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.
398

Ibid., Sec. 2.
 275

As to how the Court may inquire into the President’s exercise of power,
Lansang adopted the test that “judicial inquiry can go no further than to satisfy the
Court not that the President’s decision is correct,” but that “the President did not
act arbitrarily.” Thus, the standard laid down is not correctness, but arbitrariness.
In Integrated Bar of the Philippines, this Court further ruled that “it is incumbent
upon the petitioner to show that the President’s decision is totally bereft of factual
basis” and that if he fails, by way of proof, to support his assertion, then “this
Court cannot undertake an independent investigation beyond the pleadings.”

Petitioners failed to show that President Arroyo’s exercise of the calling-out

power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor General’s Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting reports
forming part of the records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the
communist leaders. There was also the Minutes of the Intelligence Report and
Security Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such events. Thus,
absent any contrary allegations, the Court is convinced that the President was
justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or rebellion. However, the exercise of
such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

The operative portion of PP 1017 may be divided into three important

provisions, thus:
First provision:

“by virtue of the power vested upon me by Section 18, Artilce

VII … do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or
rebellion”

Second provision:

“and to enforce obedience to all the laws and to all decrees,

orders and regulations promulgated by me personally or upon my
direction;”

Third provision:

“as provided in Section 17, Article XII of the Constitution do

hereby declare a State of National Emergency.”

First Provision: Calling-out Power

 276

The first provision pertains to the President’s calling-out power. In

Sanlakas v. Executive Secretary (G.R. No. 159085, February 3, 2004, 421 SCRA
656) this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article
VII of the Constitution reproduced as follows:

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 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.

grants the President, as Commander-in-Chief, a “sequence” of graduated powers.

From the most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare
Martial Law. Citing Integrated Bar of the Philippines v. Zamora,399 the Court
ruled that the only criterion for the exercise of the calling-out power is that
“whenever it becomes necessary,” the President may call the armed forces “to
prevent or suppress lawless violence, invasion or rebellion.” Are these conditions
present in the instant cases? As stated earlier, considering the circumstances then
prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her
Office’s vast intelligence network, she is in the best position to determine the
actual condition of the country.

Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the President’s calling-out
power is considered illegal or ultra vires. For this reason, a President must be
careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the

President’s authority to declare a “state of rebellion” (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyo’s
authority to declare a “state of rebellion” emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a

date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific

399
Supra.
 277

law or regulation is made to depend, shall be promulgated in

proclamations which shall have the force of an executive order.

President Arroyo’s declaration of a “state of rebellion” was merely an act

declaring a status or condition of public moment or interest, a declaration allowed
under Section 4 cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion.
She also relied on Section 17, Article XII, a provision on the State’s extraordinary
power to take over privately-owned public utility and business affected with
public interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.

Second Provision: “Take Care” Power

The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII which
reads:

SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested, 400 the primary
function of the President is to enforce the laws as well as to formulate policies to
be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is required
to take an oath or affirmation to the effect that as President of the Philippines, he
will, among others, “execute its laws.” 401 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the
Commander-in-Chief of all the armed forces of the country, 402 including the
Philippine National Police403 under the Department of Interior and Local
Government.404

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur

Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power
to enact laws and decrees in violation of Section 1, Article VI of the Constitution,
which vests the power to enact laws in Congress. They assail the clause “to
enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.”

400
Section 1, Article VII of the Constitution.
401
Section 5, Article VII of the Constitution.
402

Section 18, Article VII of the Constitution.

403

Section 6, Article XVI of the Constitution.

404

See Republic Act No. 6975.

 278

Petitioners’ contention is understandable. A reading of PP 1017 operative

clause shows that it was lifted405 from Former President Marcos’ Proclamation No.
1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President

of the Philippines by virtue of the powers vested upon me by Article
VII, Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the Constitution
under martial law and, in my capacity as their Commander-in-Chief,
do hereby command the Armed Forces of the Philippines, to maintain
law and order throughout the Philippines, prevent or suppress all forms
of lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: “to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction.” Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction.”

Is it within the domain of President Arroyo to promulgate “decrees”?

PP 1017 states in part: “to enforce obedience to all the laws and
decrees x x x promulgated by me personally or upon my direction.”
President Arroyo’s ordinance power is limited to executive orders,
proclamations, administrative orders, etc. She cannot issue decrees similar to
those issued by Former President Marcos under PP 1081. Presidential Decrees
are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the
period of Martial Law under the 1973 Constitution. 406

This Court rules that the assailed PP 1017 is unconstitutional insofar as it

grants President Arroyo the authority to promulgate “decrees.” Legislative power
is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that “[t]he legislative power shall be vested in the Congress of
the Philippines which shall consist of a Senate and a House of Representatives.”
To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the
military?

As this Court stated earlier, President Arroyo has no authority to enact

decrees. It follows that these decrees are void and, therefore, cannot be enforced.
With respect to “laws,” she cannot call the military to enforce or implement
certain laws, such as customs laws, laws governing family and property relations,
laws on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

405
Ironically, even the 7th Whereas Clause of PP 1017 which states that “Article 2, Section 4 of our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government” replicates more closely Section 2, Article 2 of the 1973 Constitution than
Section 4, Article 2 of the 1987 Constitution which provides that, “[t[he prime duty of the Government is to serve and protect the people.”

406
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-
Enrile, supra. Aquino v. Commission on Election, supra.
 279

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to

all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience “to all the laws and to all decrees x x x” but also to act pursuant to the
provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest

so requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public
interest.

During the existence of the state of national emergency, PP 1017 purports

to grant the President, without any authority or delegation from Congress, to take
over or direct the operation of any privately-owned public utility or business
affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of

the “martial law” thinking of the 1971 Constitutional Convention. 407 In effect at
the time of its approval was President Marcos’ Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
“the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by
the Government of its effort to contain, solve and end the present national
emergency.”

Petitioners, particularly the members of the House of Representatives, claim

that President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislature’s emergency powers.

A distinction must be drawn between the President’s authority to declare “a

state of national emergency” and to exercise emergency powers. To the first, as
elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:

SEC. 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.

407
Section 17, Article XIV of the 1973 Constitution reads: “In times of national emergency when the public interest so requires, the State may
temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.”
 280

(2) In times of war or other national emergency, the Congress

may, by law, authorize the President, for a limited period and subject
to such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to “other national emergency.” If the intention of
the Framers of our Constitution was to withhold from the President the authority
to declare a “state of national emergency” pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence
of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a
“state of national emergency.” The logical conclusion then is that President
Arroyo could validly declare the existence of a state of national emergency even
in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different matter.
This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to
be construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. 408 Considering that
Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to
national emergencies, they must be read together to determine the limitation of the
exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident

in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to
the President. Certainly, a body cannot delegate a power not reposed upon it.
However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the

Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.409

Following our interpretation of Section 17, Article XII, invoked by President

Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.

408
Antieau, Constitutional Construction, 1982, p.21.
409
Cruz, Philippine Political Law, 1998, p. 94.
 281

Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting
the take over of privately-owned public utility or business affected with
public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the
types of businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers of the
State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.

WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However,
the provisions of PP 1017 commanding the AFP to enforce laws not related to
lawless violence, as well as decrees promulgated by the President, are declared
UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to
take over privately-owned public utility or business affected with public interest
without prior legislation.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

1) Read:

2) The Habeas Corpus Cases

a. BARCELON VS. BAKER, 5 Phil. 87 (1905)

b. MONTENEGRO VS. CASTANEDA, 91 Phil. 882 (1952)
c. LANSANG VS. GARCIA, 42 SCRA 448
d. GARCIA-PADILLA VS. PONCE ENRILE, 121 SCRA 472 April 20,
1983
e. MORALES VS. JUAN PONCE ENRILE, 121 SCRA 472 April 26,
1983
f. OLAGUER VS. MILITARY COMMISSION, G.R. No. 54558, May 22,
1987
g. ROLANDO ABADILLA VS. GEN. RAMOS, 156 SCRA 97
h. JUAN PONCE ENRILE VS. JUDGE SALAZAR, June 5, 1990
i. People vs. Donato, 198 SCRA 120

2) The Martial Law cases

a. AQUINO VS. ENRILE, 59 SCRA 183
b. AQUINO VS. MILITARY COMMISSION, 63 SCRA 546
c. GUMAUA VS. ESPINO, 96 SCRA 402
d. LEGASPI VS. MINISTER 115 SCRA 418 (on the possible options
available to the president in case of lawful violence)
 282

8. Section 19. Except in cases of impeachment, or as otherwise provided in this

Constitution, the President may grant reprieves, commutations, and pardons,
and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a
majority of all the members of Congress.

a. Define: reprieve, commutation, pardon, amnesty

b. See Article IX-C, Section 5 of the 1987 Constitution and Article 5 of the
Revised Penal (Act 386)

Section 5, Art. IX-C. No pardon, amnesty, parole, or suspension

of sentence for violation of election laws, rules and regulations shall
be granted by the President without the favorable recommendation of
the Commission.
c. Read:
1) BARRIOQUINTO VS. FERNANDEZ, 82 Phil. 642

Amnesty must be distinguished from pardon.

[1] Pardon is granted by the Chief Executive and as such it is a private

act which must be pleaded and proved by the person pardoned, because the
courts take no notice thereof; while amnesty by Proclamation of the Chief
Executive with the concurrence of Congress, and it is a public act of which
the courts should take judicial notice.

[2] Pardon is granted to one after conviction (of ordinary crimes) ;

while amnesty is granted to classes of persons or communities who may be
guilty of political offenses, generally before or after the institution of the
criminal prosecution and sometimes after conviction.

[3] Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted, that is, it
abolished or forgives the punishment, and for that reason it does ""nor work
the restoration of the rights to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon," and it "in
no case exempts the culprit from the payment of the civil indemnity imposed
upon him by the sentence" article 36, Revised Penal Code). while amnesty
looks backward and abolishes and puts into oblivion the offense itself, it so
overlooks and obliterates the offense with which he is charged that the person
released by amnesty stands before the law precisely as though he had
committed no offense. (section 10[6], Article VII, Philippine Constitution;
State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E.
402., 403; Ex parte Law, 35 GA., 285, 296; State ex rel AnheuserBusch
Brewing Ass'n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61; Burdick vs United
States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59 Law. ed., 476.)

[4] Pardon is complete with the act of the President while Amnesty is valid
only with the concurrence of the majority of the members of all the
members of Congress.

2) VERA VS. PEOPLE, 7 SCRA 152

 283

Before one may validly apply for executive clemency (pardon or

amnesty) he MUST ADMIT HAVING COMMITTED THE ACTS WHICH
RESULTED IN HIS IMPRISONMENT.

3) CRISTOBAL VS. LABRADOR, 71 Phil. 34

4) PEOPLE VS. JOSE, 75 Phil. 612
5) 5) PELOBELO VS. PALATINO, 72 Phil. 441
6) PEOPLE VS. PASILAN, 14 SCRA 694
7) LEGASPI VS. MINISTER, 115 SCRA 418
8) MONSANTO VS. FACTORAN,February, 1989

The principal question raised in this petition for review is whether or

not a public officer, who has been granted an absolute pardon by the
Chief Executive, is entitled to reinstatement to her former position
without need of a New appointment.

In a decision rendered on March 25, 1983, the Sandiganbayan

convicted petitioner Salvacion A. Monsanto (then assistant treasurer of
Calbayog City) and three other accused, of the complex crime of estafa
thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day of
prision correccional as minimum, to ten (10) years and one (1) day of
prision mayor as maximum, and to pay a fine of P3,500. They were
further ordered to jointly and severally indemnify the government in the
sum of P4,892.50 representing the balance of the amount defrauded and
to pay the costs proportionately.

Petitioner Monsanto appealed her conviction to this Court which

subsequently affirmed the same. She then filed a motion for
reconsideration but while said motion was pending, she was extended on
December 17, 1984 by then President Marcos absolute pardon which she
accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer

requesting that she be restored to her former post as assistant city
treasurer since the same was still vacant.

Petitioner's letter-request was referred to the Ministry of Finance for

resolution in view of the provision of the Local Government Code
transferring the power of appointment of treasurers from the city
governments to the said Ministry. In its 4th Indorsement dated March 1,
1985, the Finance Ministry ruled that petitioner may be reinstated to her
position without the necessity of a new appointment not earlier than the
date she was extended the absolute pardon. It also directed the city
treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied.

Seeking reconsideration of the foregoing ruling, petitioner wrote the

Ministry on April 17, 1985 stressing that the full pardon bestowed on her
has wiped out the crime which implies that her service in the government
has never been interrupted and therefore the date of her reinstatement
should correspond to the date of her preventive suspension which is
August 1, 1982; that she is entitled to backpay for the entire period of her
 284

suspension; and that she should not be required to pay the proportionate
share of the amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the

Office of the President for further review and action. On April 15, 1986,
said Office, through Deputy Executive Secretary Fulgenio S. Factoran,
Jr. held:

We disagree with both the Ministry of Finance and the petitioner

because, as borne out by the records, petitioner was convicted of
the crime for which she was accused. In line with the government's
crusade to restore absolute honesty in public service, this Office
adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the
Resolution of the Sandiganbayan, 2nd Division, in People v.
Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not
absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of
his salaries, benefits and emoluments due to him during the period
of his suspension pendente lite.

n fact, in such a situation, the former public official must secure a

reappointment before he can reassume his former position. ...

Anent the civil liability of Monsanto, the Revised Penal Code

expressly provides that "a pardon shall in no case exempt the culprit from
payment of the civil indemnity imposed upon him by the sentence." (Sec.
36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A.

Monsanto is not entitled to an automatic reinstatement on the basis of the
absolute pardon granted her but must secure an appointment to her
former position and that, notwithstanding said absolute pardon, she is
liable for the civil liability concomitant to her previous conviction.

Her subsequent motion for reconsideration having been denied, petitioner

filed the present petition in her behalf We gave due course on October
13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply
to her case by reason of the fact that she was extended executive
clemency while her conviction was still pending appeal in this Court.
There having been no final judgment of conviction, her employment
therefore as assistant city treasurer could not be said to have been
terminated or forfeited. In other words, without that final judgment of
conviction, the accessory penalty of forfeiture of office did not attach and
the status of her employment remained "suspended." More importantly,
when pardon was issued before the final verdict of guilt, it was an
acquittal because there was no offense to speak of. In effect, the
President has declared her not guilty of the crime charged and has
accordingly dismissed the same.

It is well to remember that petitioner had been convicted of the complex

crime of estafa thru falsification of public documents and sentenced to
imprisonment of four years, two months and one day of prision
correccional as minimum, to ten years and one day of prision mayor as
maximum. The penalty of prision mayor carries the accessory penalties
 285

of temporary absolute disqualification and perpetual special

disqualification from the right of suffrage, enforceable during the term of
the principal penalty. Temporary absolute disqualification bars the
convict from public office or employment, such disqualification to last
during the term of the sentence. Even if the offender be pardoned, as to
the principal penalty, the accessory penalties remain unless the same
have been expressly remitted by the pardon. The penalty of prision
correccional carries, as one of its accessory penalties, suspension from
public office.

The propositions earlier advanced by petitioner reveal her

inadequate understanding of the nature of pardon and its legal
consequences. This is not totally unexpected considering that the
authorities on the subject have not been wholly consistent particularly in
describing the effects of pardon.

The benign mercy of pardon is of British origin, conceived to

temper the gravity of the King's wrath. But Philippine jurisprudence on
the subject has been largely influenced by American case law.

Pardon is defined as "an act of grace, proceeding from the power

entrusted with the execution of the laws, which exempts the individual,
on whom it is bestowed, from the punishment the law inflicts for a crime
he has committed. It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is intended,
and not communicated officially to the Court. ... A pardon is a deed, to
the validity of which delivery is essential, and delivery is not complete
without acceptance."

At the time the antecedents of the present case took place, the
pardoning power was governed by the 1973 Constitution as amended in
the April 7, 1981 plebiscite. The pertinent provision reads:

The President may, except in cases of impeachment, grant

reprieves, commutations and pardons, remit fines and forfeitures,
and with the concurrence of the Batasang Pambansa, grant
amnesty.

The 1981 amendments had deleted the earlier rule that clemency
could be extended only upon final conviction, implying that clemency
could be given even before conviction. Thus, petitioner's unconditional
pardon was granted even as her appeal was pending in the High Court. It
is worth mentioning that under the 1987 Constitution, the former
limitation of final conviction was restored. But be that as it may, it is our
view that in the present case, it is not material when the pardon was
bestowed, whether before or after conviction, for the result would still be
the same. Having accepted the pardon, petitioner is deemed to have
abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.

Having disposed of that preliminary point, we proceed to discuss

the effects of a full and absolute pardon in relation to the decisive
question of whether or not the plenary pardon had the effect of removing
the disqualifications prescribed by the Revised Penal Code.
 286

In Pelobello v. Palatino, We find a reiteration of the stand

consistently adopted by the courts on the various consequences of
pardon: "... we adopt the broad view expressed in Cristobal v. Labrador,
G.R. No. 47941, December 7, 1940, that subject to the limitations
imposed by the Constitution, the pardoning power cannot be restricted or
controlled by legislative action; that an absolute pardon not only blots out
the crime committed but removes all disabilities resulting from the
conviction. ... (W)e are of the opinion that the better view in the light of
the constitutional grant in this jurisdiction is not to unnecessarily restrict
or impair the power of the Chief Executive who, after an inquiry into the
environmental facts, should be at liberty to atone the rigidity of the law
to the extent of relieving completely the party ... concerned from the
accessory and resultant disabilities of criminal conviction.

A pardon reaches both the punishment prescribed for the offense

and the guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed the offense.
If granted before conviction, it prevents any of the penalties and
disabilities, consequent upon conviction, from attaching; if granted after
conviction, it removes the penalties and disabilities and restores him to
all his civil rights; it makes him, as it were, a new man, and gives him a
new credit and capacity.

Such generalities have not been universally accepted, recognized or

approved. The modern trend of authorities now rejects the unduly broad
language of the Garland case (reputed to be perhaps the most extreme
statement which has been made on the effects of a pardon). To our mind,
this is the more realistic approach. While a pardon has generally been
regarded as blotting out the existence of guilt so that in the eye of the law
the offender is as innocent as though he never committed the offense, it
does not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt. Pardon implies guilt. It does not erase
the fact of the commission of the crime and the conviction thereof. It
does not wash out the moral stain. It involves forgiveness and not
forgetfulness.

The better considered cases regard full pardon (at least one not
based on the offender's innocence) as relieving the party from all the
punitive consequences of his criminal act, including the disqualifications
or disabilities based on the finding of guilt. But it relieves him from
nothing more. "To say, however, that the offender is a "new man", and
"as innocent as if he had never committed the offense;" is to ignore the
difference between the crime and the criminal. A person adjudged guilty
of an offense is a convicted criminal, though pardoned; he may be
deserving of punishment, though left unpunished; and the law may
regard him as more dangerous to society than one never found guilty of
crime, though it places no restraints upon him following his conviction."

A pardon looks to the future. It is not retrospective. It makes no amends

for the past. It affords no relief for what has been suffered by the
offender. It does not impose upon the government any obligation to make
reparation for what has been suffered. "Since the offense has been
established by judicial proceedings, that which has been done or suffered
while they were in force is presumed to have been rightfully done and
 287

justly suffered, and no satisfaction for it can be required." This would

explain why petitioner, though pardoned, cannot be entitled to receive
backpay for lost earnings and benefits.

Finally, petitioner has sought exemption from the payment of the

civil indemnity imposed upon her by the sentence. The Court cannot
oblige her. Civil liability arising from crime is governed by the Revised
Penal Code. It subsists notwithstanding service of sentence, or for any
reason the sentence is not served by pardon, amnesty or commutation of
sentence. Petitioner's civil liability may only be extinguished by the same
causes recognized in the Civil Code, namely: payment, loss of the thing
due, remission of the debt, merger of the rights of creditor and debtor,
compensation and novation .

9. Lllamas vs. Exec. Sec. Orbos, Oct. 15, 1991

The case before Us calls for a determination of whether or not the

President of the Philippines has the power to grant executive clemency in
administrative cases. In connection therewith, two important questions are
also put in issue, namely, whether or not the grant of executive clemency
and the reason therefore, are political questions beyond judicial review, and
whether or not the questioned act was characterized by grave abuse of
discretion amounting to lack of jurisdiction.

Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the

Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a
decision of the Office of the President, the governorship (p. 1, Petition).
Private respondent Mariano Un Ocampo III is the incumbent Governor of
the Province of Tarlac and was suspended from office for a period of 90
days. Public respondent Oscar Orbos was the Executive Secretary at the
time of the filing of this petition and is being impleaded herein in that
official capacity for having issued, by authority of the President, the assailed
Resolution granting executive clemency to respondent governor.

By virtue of the aforequoted Resolution, respondent governor

reassumed the governorship of the province, allegedly without any
notification made to the petitioner.
Petitioner posits that the issuance by public respondent of the May 15, 1991
Resolution was "whimsical, capricious and despotic, and constituted grave
abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically
on the ground th executive clemency could be granted by the President only
in criminal cases as there is nothing in the statute books or even in the
Constitution which allows the grant thereof in administrative cases.
Petitioner also contends that since respondent governor refused to recognize
his suspension (having reassumed the governorship in gross defiance of the
suspension order), executive clemency cannot apply to him; that his rights to
due process were violated because the grant of executive clemency was so
sudden that he was not even notified thereof; and that despite a finding by
public respondent of impropriety in the loan transaction entered into by
respondent governor, the former failed to justify the reduction of the penalty
of suspension on the latter. Petitioner further alleges that the executive
clemency granted by public respondent was "the product of a hocus-pocus
strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly
 288

no real petition for the grant of executive clemency filed by respondent

governor.

Batas Pambansa Blg. 337 provides:

Sec. 63. Preventive Suspension. (1) Preventive suspension may be

imposed by the Minister of Local Government if the respondent is a
provincial or city official, ...
(2) Preventive suspension may be imposed at any time after the
issues are joined, when there is reasonable ground to believe that the
respondent has committed the act or acts complained of, when the
evidence of culpability is strong, when the gravity of the offense s
warrants, or when the continuance in office of the respondent coul
influence the witnesses or pose a threat to the safety and integrity the
records and other evidence. In all cases, preventive suspension shall
not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be

deemed reinstated in office without prejudice to the continuation the
proceedings against him until its termination. (Emphasis supplied)

Let us first deal with the issue on jurisdiction. Respondent govemor

avers that since under the Constitution discretionary authority is granted to
the President on the exercise of executive clemency, the same constitutes a
political question which is beyond judicial review.
Such a rule does not hold true in the case at bar. While it is true that
courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled
rule that when the issue involved concerns the validity of such discretionary
powers or whether said powers are within the limits prescribed by the
Constitution, We will not decline to exercise our power of judicial review.
And such review does not constitute a modification or correction of the act
of the President, nor does it constitute interference with the functions of the
President. In this connection, the case of Tanada and Macapagal vs. Cuenco,
et al., 103 Phil. 1051, is very enlightening, and We quote:

Elsewhere in this treatise the well-known and well-established

principle is considered that it is not within the province of the courts to
pass judgment upon the policy of legislative or executive action.
Where, therefore, discretionary powers are granted by the Constitution
or by statute, the manner in which those powers are exercised is not
subject to judicial review. The courts, therefore, concern themselves
only with the question as to the existence and extent of these
discretionary powers.

As distinguished from the judicial, the legislative and executive departments

are spoken of as the political departments of government because in very
many cases their action is necessarily dictated by considerations of public or
political policy. These considerations of public or political policy of course
will not permit the legislature to violate constitutional provisions, or the
executive to exercise authority not granted him by the Constitution or by
statute, but, within these limits, they do permit the departments, separately
or together, to recognize that a certain set of facts exists or that a given status
exists, and these determinations, together with the consequences that flow
 289

therefrom, may not be traversed in the courts. (Willoughby on the

Constitution of the United States, Vol. 3, p. 1326).

In the case at bar, the nature of the question for determination is not
purely political. Here, we are called upon to decide whether under the
Constitution the President may grant executive clemency in administrative
cases. We must not overlook the fact that the exercise by the President of her
power of executive clemency is subject to constitutional limitations. We will
merely check whether the particular measure in question has been in
accordance with law. In so doing, We will not concern ourselves with the
reasons or motives which actuate the President as such is clearly beyond our
power of judicial review.

Petitioner's main argument is that the President may grant executive

clemency only in criminal cases, based on Article VII, Section 19 of the
Constitution which reads:

Sec. 19. Except in cases of impeachment, or as otherwise pro vided

in this Constitution, the President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the members of the Congress.
(Emphasis supplied)

According to the petitioner, the qualifying phrase "after conviction by

final judgment" applies solely to criminal cases, and no other law allows the
grant of executive clemency or pardon to anyone who has been "convicted
in an administrative case," allegedly because the word "conviction" refers
only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however,
describes in his very own words, respondent governor as one who has been
"convicted in an administrative case" (par. 22-a, petition). Thus, petitioner
concedes that the word "conviction" may be used either in a criminal case or
in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536,
We ruled:

For misfeasance or malfeasance ... any [elective official] could ... be

proceeded against administratively or ... criminally. In either case, his
culpability must be established ...

Moreover, applying the doctrine "Ubi lex non distinguit, nec nos
distinguire debemos," We cannot sustain petitioner's view. In other words, if
the law does not distinguish, so We must no distinguish. The Constitution
does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases.
By the same token, if executive clemency may be exercised only in criminal
cases, it would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19 of the
Constitution. Following petitioner's proposed interpretation, cases of
impeachment are automatically excluded inasmuch as the same do not
necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing reason
why the President cannot grant executive clemency in administrative cases.
It is Our considered view that if the President can grant reprieves,
 290

commutations and pardons, and remit fines and forfeitures in criminal cases,
with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.
A number of laws impliedly or expressly recognize or support the exercise
of the executive clemency in administrative cases.

d. Is breach of the condition of pardon subject to judicial review?

Read: TORRES VS. GONZALES, 152 SCRA 272

On 18 April 1979, a conditional pardon was granted to the petitioner

by the President of the Philippines on condition that petitioner would "not
again violate any of the penal laws of the Philippines. Should this condition
be violated, he will be proceeded against in the manner prescribed by law."
Petitioner accepted the conditional pardon and was consequently released
from confinement.
On 21 May 1986, the Board of Pardons and Parole (the "Board")
resolved to recommend to the President the cancellation of the conditional
pardon granted to the petitioner. In making its recommendation to the
President, the Board relied upon the decisions of this Court in Tesoro vs.
Director of Prisons (68 Phil. 154 [1939]) and Espuelas vs. Provincial
Warden of Bohol (108 Phil. 356 [1960]). The evidence before the Board
showed that on 22 March 1982 and 24 June 1982, petitioner had been
charged with twenty counts of estafa in Criminal Cases Nos. Q-19672 and
Q-20756, which cases were then (on 21 May 1986) pending trial before the
Regional Trial Court of Rizal (Quezon City). The record before the Board
also showed that on 26 June 1985, petitioner had been convicted by the
Regional Trial Court of Rizal (Quezon City) of the crime of sedition in
Criminal Case No. Q-22926; this conviction was then pending appeal before
the Intermediate Appellate Court. The Board also had before it a letter report
dated 14 January 1986 from the National Bureau of Investigation ("NBI"),
addressed to the Board, on the petitioner. Per this letter, the records of the
NBI showed that a long list of charges had been brought against the
petitioner during the last twenty years for a wide assortment of crimes
including estafa, other forms of swindling, grave threats, grave coercion,
illegal possession of firearms, ammunition and explosives, malicious
mischief, violation of Batas Pambansa Blg. 22, and violation of Presidential
Decree No. 772 (interfering with police functions). Some of these charges
were Identified in the NBI report as having been dismissed. The NBI report
did not purport to be a status report on each of the charges there listed and
Identified.

On 8 September 1986, the President cancelled the conditional pardon

of the petitioner.

On 10 October 1986, the respondent Minister of Justice issued "by

authority of the President" an Order of Arrest and Recommitment against
petitioner. The petitioner was accordingly arrested and confined in
Muntinlupa to serve the unexpired portion of his sentence.

Petitioner now impugns the validity of the Order of Arrest and

Recommitment. He claims that he did not violate his conditional pardon
since he has not been convicted by final judgment of the twenty (20) counts
of estafa charged in Criminal Cases Nos. Q-19672 and Q-20756 nor of the
crime of sedition in Criminal Case No. Q-22926. 3 Petitioner also contends
that he was not given an opportunity to be heard before he was arrested and
 291

recommitted to prison, and accordingly claims he has been deprived of his

rights under the due process clause of the Constitution.

The issue that confronts us therefore is whether or not conviction of a

crime by final judgment of a court is necessary before the petitioner can be
validly rearrested and recommitted for violation of the terms of his
conditional pardon and accordingly to serve the balance of his original
sentence.

This issue is not novel. It has been raised before this Court three times
in the past. This Court was first faced with this issue in Tesoro Director of
Prison. Tesoro, who had been convicted of the crime of falsification of
public documents, was granted a parole by the then Governor-General. One
of the conditions of the parole required the parolee "not [to] commit any
other crime and [to] conduct himself in an orderly manner." Two years after
the grant of parole, Tesoro was charged before the Justice of the Peace Court
of San Juan, Rizal, with the crime of adultery said to have been committed
with the wife of Tesoro's brother-in-law. The fiscal filed with the Court of
First Instance the corresponding information which, however, was dismissed
for non-appearance of the complainant. The complainant then went before
the Board of Indeterminate Sentence and charged Tesoro with violation of
the conditions of his parole. After investigation by the parole officer, and on
the basis of his report, the Board recommended to the President of the
Philippines the arrest and recommitment of the petitioner. Tesoro contended,
among other things, that a "judicial pronouncement to the effect that he has
committed a crime" is necessary before he could properly be adjudged as
having violated his conditional parole.

Addressing this point, this Court, speaking through then Mr. Justice Moran,
held that the determination of whether the conditions of Tesoro's parole had
been breached rested exclusively in the sound judgment of the Governor-
General and that such determination would not be reviewed by the courts.
As Tesoro had consented to place his liberty on parole upon the judgment of
the power that had granted it, we held that "he [could not] invoke the aid of
the courts, however erroneous the findings may be upon which his
recommitment was ordered." Thus, this Court held that by accepting the
terms under which the parole had been granted, Tesoro had in effect agreed
that the Governor-General's determination (rather than that of the regular
courts of law) that he had breached one of the conditions of his parole by
committing adultery while he was conditionally at liberty, was binding and
conclusive upon him.

In Sales vs. Director of Prisons, the petitioner had been convicted of the
crime of frustrated murder. After serving a little more than two years of his
sentence, he was given a conditional pardon by the President of the
Philippines, "the condition being that he shall not again violate any of the
penal laws of the Philippines and that, should this condition be violated, he
shall be proceeded against in the manner prescribed by law." 8 Eight years
after the grant of his conditional pardon, Sales was convicted of estafa and
sentenced to three months and eleven days of arresto mayor. He was
thereupon recommitted to prison to serve the unexpired portion of his
original sentence. Sales raised before this Court two principal contentions.
Firstly, he argued that Section 64 (i) of the Revised Administrative Code had
been repealed by Article 159 of the Revised Penal Code. He contended,
secondly, that Section 64 (i) was in any case repugnant to the due process
 292

clause of the Constitution (Article III [1], 1935 Constitution). This Court,
through Mr. Justice Ozaeta speaking for the majority, rejected both
contentions of Sales.

In Espuelas vs. Provincial Warden of Bohol, the petitioner had been

convicted of the crime of inciting to sedition. While serving his sentence, he
was granted by the President a conditional pardon "on condition that he shall
not again violate any of the penal laws of the Philippines." Espuelas
accepted the conditional pardon and was released from confinement.
Sometime thereafter, he was convicted by the Justice of the Peace Court in
Tagbilaran, Bohol, of the crime of usurpation of authority. He appealed to
the Court of First Instance. Upon motion of the provincial fiscal, the Court
of First Instance dismissed the case provisionally, an important prosecution
witness not having been available on the day set for trial. A few months
later, upon recommendation of the Board of Pardons and Parole, the
President ordered his recommitment to prison to serve the unexpired period
of his original sentence.

The status of our case law on the matter under consideration may be
summed up in the following propositions:

1. The grant of pardon and the determination of the terms and

conditions of a conditional pardon are purely executive acts which are
not subject to judicial scrutiny.
2. The determination of the occurrence of a breach of a condition of
a pardon, and the proper consequences of such breach, may be either a
purely executive act, not subject to judicial scrutiny under Section 64
(i) of the Revised Administrative Code; or it may be a judicial act
consisting of trial for and conviction of violation of a conditional
pardon under Article 159 of the Revised Penal Code. Where the
President opts to proceed under Section 64 (i) of the Revised
Administrative Code, no judicial pronouncement of guilt of a
subsequent crime is necessary, much less conviction therefor by final
judgment of a court, in order that a convict may be recommended for
the violation of his conditional pardon.

3. Because due process is not semper et unique judicial process,

and because the conditionally pardoned convict had already been
accorded judicial due process in his trial and conviction for the offense
for which he was conditionally pardoned, Section 64 (i) of the Revised
Administrative Code is not afflicted with a constitutional vice.

CRUZ, J., dissenting:

The petitioner challenges his recommitment, claiming he has not violated

the condition of his pardon "that he shall not again violate any of the penal
laws of the Philippines." The government bases its stand on the case of
Espuelas v. Provincial Warden of Bohol, 108 Phil. 353, where it was held, in
connection with a similar condition, that mere commission of a crime, as
determined by the President, was sufficient to justify recommitment.
Conviction was considered not necessary.

I would grant the petition.

There is no question that the petitioner is facing a long list of criminal
charges, but that certainly is not the issue. The point is that, as many as such
 293

charges may be, none of them so far has resulted in a final conviction,
without which he cannot be recommitted under the condition of his pardon.
Mere accusation is not synonymous with guilt. (People v. Dramayo, 42
SCRA 59). A prima facie case only justifies the filing of the corresponding
information, but proof beyond reasonable doubt is still necessary for
conviction. Manifestly, an allegation merely accuses the defendant of a
crime: it is the conviction that makes him a criminal. In other words, a
person is considered to have committed a crime only if he is convicted
thereof, and this is done not by his accuser but by the judge.

That this conviction must be pronounced by the judge and no other is too
obvious a proposition to be disputed. The executive can only allege the
commission of crime and thereafter try to prove it through indubitable
evidence. If the prosecution succeeds, the court will then affirm the
allegation of commission in a judgment of conviction.

e. Amnesty to rebels

Read:

Proclamation No. 80, February 28, 1987

10. Sections 20. The President may contract or guarantee foreign loans on behalf
of the Republic of the Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be provided for by law. The
Monetary Board shall, within 30 days from the end of every quarter of the
calendar year, submit to the Congress a complete report of its decisions on
applications for loans to be contracted or guaranteed by the government or
government owned and controlled corporations which would have the effect of
increasing the foreign debt, and containing other matters as may be provided for
by law.

Section 21. No treaty or international

agreement shall be valid and effective unless
concurred in by at least 2/3 of all the
members of the Senate.

(NOTE: Please see Section 25, Art. 18. After the expiration in 1991 of the
Agreement between the Republic of the Philippines and the USA 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.)

Is the visiting forces agreement between the

Philippines and the UNITED STATES void and
unconstitutional? Is it a self-executing treaty
that can be implemented without ratification by
the US Senate though ratified by the Philippine
Senate?

SUZETTE NICOLAS y SOMBILON, vs. ALBERTO

ROMULO, in his capacity as Secretary of Foreign
Affairs; RAUL GONZALEZ, in his capacity as
 294

Secretary of Justice; EDUARDO ERMITA, in his

capacity as Executive Secretary; RONALDO PUNO, in
his capacity as Secretary of the Interior and Local
Government; SERGIO APOSTOL, in his capacity as
Presidential Legal Counsel; and L/CPL. DANIEL
SMITH, G.R. No. 175888, February 11, 2009

AZCUNA, J.:

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the

United States Armed Forces. He was charged with the crime of rape committed
against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian

Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L.
Soriano, Jr. of the crime of Rape under Article 266-A of the Revised
Penal Code, as amended by Republic Act 8353, upon a complaint
under oath filed by Suzette S. Nicolas, which is attached hereto and
made an integral part hereof as Annex “A,” committed as follows:

“That on or about the First (1 st) day of November

2005, inside the Subic Bay Freeport Zone, Olongapo City
and within the jurisdiction of this Honorable Court, the
above-named accused’s (sic), being then members of the
United States Marine Corps, except Timoteo L. Soriano,
Jr., conspiring, confederating together and mutually
helping one another, with lewd design and by means of
force, threat and intimidation, with abuse of superior
strength and taking advantage of the intoxication of the
victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse
with or carnal knowledge of one Suzette S. Nicolas, a 22-
year old unmarried woman inside a Starex Van with Plate
No. WKF-162, owned by Starways Travel and Tours, with
Office address at 8900 P. Victor St., Guadalupe, Makati
City, and driven by accused Timoteo L. Soriano, Jr.,
against the will and consent of the said Suzette S. Nicolas,
to her damage and prejudice.

CONTRARY TO LAW.”410[1]

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of

the Philippines and the United States, entered into on February 10, 1998, the
United States, at its request, was granted custody of defendant Smith pending the
proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC)
of Zambales to the RTC of Makati for security reasons, the United States
Government faithfully complied with its undertaking to bring defendant Smith to
the trial court every time his presence was required.

410[1]
Annex “B” of RTC Decision, CA rollo, p. 45.
 295

On December 4, 2006, the RTC of Makati, following the end of the trial,
rendered its Decision, finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the

prosecution to adduce sufficient evidence against accused S/SGT.
CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned
at the USS Essex, are hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against

accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at
the USS Essex, this Court hereby finds him GUILTY BEYOND
REASONABLE DOUBT of the crime of RAPE defined under Article
266-A, paragraph 1 (a) of the Revised Penal Code, as amended by
R.A. 8353, and, in accordance with Article 266-B, first paragraph
thereof, hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for under
Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces

Agreement entered into by the Philippines and the United States,
accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by appropriate
Philippine and United States authorities. Pending agreement on such
facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily
committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to

indemnify complainant SUZETTE S. NICOLAS in the amount of
P50,000.00 as compensatory damages plus P50,000.00 as moral
damages.

As a result, the Makati court ordered Smith detained at the Makati jail until
further orders.

On December 29, 2006, however, defendant Smith was taken out of the
Makati jail by a contingent of Philippine law enforcement agents, purportedly
acting under orders of the Department of the Interior and Local Government, and
brought to a facility for detention under the control of the United States
government, provided for under new agreements between the Philippines and the
United States, referred to as the Romulo-Kenney Agreement of December 19,
2006 which states:

The Government of the Republic of the Philippines and the

Government of the United States of America agree that, in accordance
with the Visiting Forces Agreement signed between our two nations,
Lance Corporal Daniel J. Smith, United States Marine Corps, be
returned to U.S. military custody at the U.S. Embassy in Manila.

(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO

Representative of the United States Representative of the
Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006__

 296

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines

and the Embassy of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed between the
two nations, upon transfer of Lance Corporal Daniel J. Smith, United
States Marine Corps, from the Makati City Jail, he will be detained at
the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound
in a room of approximately 10 x 12 square feet. He will be guarded
round the clock by U.S. military personnel. The Philippine police and
jail authorities, under the direct supervision of the Philippine
Department of Interior and Local Government (DILG) will have
access to the place of detention to ensure the United States is in
compliance with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on
January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to

DISMISS the petition for having become moot.411[3]

Hence, the present actions.

HELD:

Petitioners contend that the Philippines should have custody of defendant

L/CPL Smith because, first of all, the VFA is void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the
constitutionality of the VFA. This was in Bayan v. Zamora,412[4] brought by Bayan,
one of petitioners in the present cases.

Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-
vis all the parties, the reversal of the previous ruling is sought on the ground that
the issue is of primordial importance, involving the sovereignty of the Republic,
as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between

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.

The reason for this provision lies in history and the Philippine experience in
regard to the United States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis
for the Philippine Commonwealth and, eventually, for the recognition of
independence, the United States agreed to cede to the Philippines all the territory
411[3]
Rollo, pp. 90-127.
412[4]
G.R. No. 138570, October 10, 2000, 342 SCRA 449.
 297

it acquired from Spain under the Treaty of Paris, plus a few islands later added to
its realm, except certain naval ports and/or military bases and facilities, which the
United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the
other places in the Philippines covered by the RP-US Military Bases Agreement of
1947 were not Philippine territory, as they were excluded from the cession and
retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to

the extent allowed by the United States. Furthermore, the RP-US Military Bases
Agreement was never advised for ratification by the United States Senate, a
disparity in treatment, because the Philippines regarded it as a treaty and had it
concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the
Philippines; and with the expiration of the RP-US Military Bases Agreement in
1991, the territory covered by these bases were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was

adopted in the 1987 Constitution.

The provision is thus designed to ensure that any agreement allowing the
presence of foreign military bases, troops or facilities in Philippine territory shall
be equally binding on the Philippines and the foreign sovereign State involved.
The idea is to prevent a recurrence of the situation in which the terms and
conditions governing the presence of foreign armed forces in our territory were
binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question
is whether or not the presence of US Armed Forces in Philippine territory pursuant
to the VFA is allowed “under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other contracting State.”

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,413[5] the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the United States
government.

The fact that the VFA was not submitted for advice and consent of the
United States Senate does not detract from its status as a binding international
agreement or treaty recognized by the said State. For this is a matter of internal
United States law. Notice can be taken of the internationally known practice by
the United States of submitting to its Senate for advice and consent agreements
that are policymaking in nature, whereas those that carry out or further implement
these policymaking agreements are merely submitted to Congress, under the
provisions of the so-called Case–Zablocki Act, within sixty days from
ratification.414[6]

The second reason has to do with the relation between the VFA and the RP-
US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed
413[5]
Supra, note 4.
414 [6]
The Case-Zablocki Act, 1 U.S.C. 112b (a) (1976 ed., Supp IV). See also Weinberger v. Rossi, 456 U.S. 25 (1982), in which the U.S.
Supreme Court sustained recognition as a “treaty” of agreements not concurred in by the U.S. Senate.
 298

and duly ratified with the concurrence of both the Philippine Senate and the
United States Senate.

The RP-US Mutual Defense Treaty states: 415[7]

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF

THE PHILIPPINES AND THE UNITED STATES OF AMERICA.
Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the

Charter of the United Nations and their desire to live in peace with all
peoples and all governments, and desiring to strengthen the fabric of
peace in the Pacific area.

Recalling with mutual pride the historic relationship which

brought their two peoples together in a common bond of sympathy and
mutual ideals to fight side-by-side against imperialist aggression
during the last war.

Desiring to declare publicly and formally their sense of unity

and their common determination to defend themselves against
external armed attack, so that no potential aggressor could be under
the illusion that either of them stands alone in the Pacific area.

Desiring further to strengthen their present efforts for

collective defense for the preservation of peace and security
pending the development of a more comprehensive system of regional
security in the Pacific area.

Agreeing that nothing in this present instrument shall be

considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings between the
Republic of the Philippines and the United States of America.

Have agreed as follows:

ARTICLE I. The parties undertake, as set forth in the Charter of

the United Nations, to settle any international disputes in which they
may be involved by peaceful means in such a manner that international
peace and security and justice are not endangered and to refrain in
their international relation from the threat or use of force in any
manner inconsistent with the purposes of the United Nations.

ARTICLE II. In 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.

415 [7]
The RP-US Mutual Defense Treaty was signed in Washington, D.C. on August 30, 1951. Its ratification was advised by the US Senate on
March 20, 1952, and the US President ratified the Treaty on April 15, 1952.
The Treaty was concurred in by the RP Senate, S.R. No. 84, May 12, 1952. The Philippine instrument of ratification was signed by the RP
President on August 27, 1952. The Agreement entered into force on August 27, 1952 upon the exchange of ratification between the Parties.
This Agreement is published in II DFA TS No. 1, p. 13; 177 UNTS, p. 133; 3 UST 3847-3952. The RP Presidential proclamation of the
Agreement, Proc. No. 341, S. 1952, is published in 48 O.G. 4224 (Aug. 1952).
 299

ARTICLE III. The Parties, through their Foreign Ministers or

their deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of
them the territorial integrity, political independence or security of
either of the Parties is threatened by external armed attack in the
Pacific.

ARTICLE IV. Each Party recognizes that an armed attack in the

Pacific area on either of the parties would be dangerous to its own
peace and safety and declares that it would act to meet the common
dangers in accordance with its constitutional processes.

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 measures necessary to restore and maintain
international peace and security.

ARTICLE V. For the purpose of Article IV, an armed attack on

either of the Parties is deemed to include an armed attack on the
metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed forces,
public vessels or aircraft in the Pacific.

ARTICLE VI. This Treaty does not affect and shall not be
interpreted as affecting in any way the rights and obligations of the
Parties under the Charter of the United Nations or the responsibility of
the United Nations for the maintenance of international peace and
security.

ARTICLE VII. This Treaty shall be ratified by the Republic of

the Philippines and the United Nations of America in accordance with
their respective constitutional processes and will come into force when
instruments of ratification thereof have been exchanged by them at
Manila.

ARTICLE VIII. This Treaty shall remain in force indefinitely.

Either Party may terminate it one year after notice has been given to
the other party.

IN WITHNESS WHEREOF the undersigned Plenipotentiaries

have signed this Treaty.

DONE in duplicate at Washington this thirtieth day of August,

1951.

For the Republic of the Philippines:

(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL

For the United States of America:

(Sgd.) DEAN ACHESON

 300

(Sgd.) JOHN FOSTER DULLES

(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY416[8]

Clearly, therefore, joint RP-US military exercises for the purpose of

developing the capability to resist an armed attack fall squarely under the
provisions of the RP-US Mutual Defense Treaty. The VFA, which is the
instrument agreed upon to provide for the joint RP-US military exercises, is
simply an implementing agreement to the main RP-US Military Defense Treaty.
The Preamble of the VFA states:

The Government of the United States of America and the Government

of the Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of

the United Nations and their desire to strengthen international and
regional security in the Pacific area;

Reaffirming their obligations under the Mutual Defense Treaty of

August 30, 1951;

Noting that from time to time elements of the United States armed
forces may visit the Republic of the Philippines;

Considering that cooperation between the United States and the

Republic of the Philippines promotes their common security
interests;

Recognizing the desirability of defining the treatment of United States

personnel visiting the Republic of the Philippines;

Have agreed as follows:417[9]

Accordingly, as an implementing agreement of the RP-US Mutual Defense

Treaty, it was not necessary to submit the VFA to the US Senate for advice and
consent, but merely to the US Congress under the Case–Zablocki Act within 60
days of its ratification. It is for this reason that the US has certified that it
recognizes the VFA as a binding international agreement, i.e., a treaty, and this
substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.418[10]

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by

virtue of the fact that the presence of the US Armed Forces through the VFA is a
presence “allowed under” the RP-US Mutual Defense Treaty. Since the RP-US
Mutual Defense Treaty itself has been ratified and concurred in by both the
Philippine Senate and the US Senate, there is no violation of the Constitutional
provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a
matter of international law to abide by its terms and provisions.

416[8]
Emphasis supplied.
417[9]
Emphasis supplied.
418[10]
See Letter of Ambassador Thomas C. Hubbard quoted in Bayan, 342 SCRA 449, 491.
 301

The VFA provides that in cases of offenses committed by the members of

the US Armed Forces in the Philippines, the following rules apply:

Article V
Criminal Jurisdiction

xxx
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.

Petitioners contend that these undertakings violate another provision of the

Constitution, namely, that providing for the exclusive power of this Court to adopt
rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They
argue that to allow the transfer of custody of an accused to a foreign power is to
provide for a different rule of procedure for that accused, which also violates the
equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial

basis for a different treatment of a member of a foreign military armed forces
allowed to enter our territory and all other accused. 419[11]

The rule in international law is that a foreign armed forces allowed to enter
one’s territory is immune from local jurisdiction, except to the extent agreed upon.
The Status of Forces Agreements involving foreign military units around the
world vary in terms and conditions, according to the situation of the parties
involved, and reflect their bargaining power. But the principle remains, i.e., the
receiving State can exercise jurisdiction over the forces of the sending State only
to the extent agreed upon by the parties.420[12]

As a result, the situation involved is not one in which the power of this
Court to adopt rules of procedure is curtailed or violated, but rather one in which,
as is normally encountered around the world, the laws (including rules of
procedure) of one State do not extend or apply – except to the extent agreed
419 [11]
See, the summation of the rule on equal protection in ISAGANI A. CRUZ, CONSTITUTIONAL LAW, pp. 123-139 (2007), and the
authorities cited therein.
420[12]
See Dieter Fleck, Ed., The HANDBOOK OF THE LAW OF VISITING FORCES , Oxford: 2001.
 302

upon – to subjects of another State due to the recognition of extraterritorial

immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity

from jurisdiction or some aspects of jurisdiction (such as custody), in relation to
long-recognized subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign State allowed to enter
another State’s territory. On the contrary, the Constitution states that the
Philippines adopts the generally accepted principles of international law as part of
the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a
different treatment when it comes to detention as against custody. The moment
the accused has to be detained, e.g., after conviction, the rule that governs is the
following provision of the VFA:

Article V
Criminal Jurisdiction

xxx
Sec. 10. The confinement or detention by Philippine authorities
of United States personnel shall be carried out in facilities agreed on
by appropriate Philippines and United States authorities. United States
personnel serving sentences in the Philippines shall have the right to
visits and material assistance.

It is clear that the parties to the VFA recognized the difference between
custody during the trial and detention after conviction, because they provided for a
specific arrangement to cover detention. And this specific arrangement clearly
states not only that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be “by Philippine
authorities.” Therefore, the Romulo-Kenney Agreements of December 19 and 22,
2006, which are agreements on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself because such detention is not “by
Philippine authorities.”

Respondents should therefore comply with the VFA and negotiate with
representatives of the United States towards an agreement on detention facilities
under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme
Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held
that treaties entered into by the United States are not automatically part of their
domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable.

On February 3, 2009, the Court issued a Resolution, thus:

“G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et

al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith,
et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan
[BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
 303

The parties, including the Solicitor General, are required to

submit within three (3) days a Comment/Manifestation on the
following points:

1. What is the implication on the RP-US Visiting Forces Agreement

of the recent US Supreme Court decision in Jose Ernesto
Medellin v. Texas, dated March 25, 2008, to the effect that treaty
stipulations that are not self-executory can only be enforced
pursuant to legislation to carry them into effect; and that, while
treaties may comprise international commitments, they are not
domestic law unless Congress has enacted implementing statutes
or the treaty itself conveys an intention that it be “self-
executory” and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law,

either because it is self-executory or because there exists
legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951

was concurred in by the US Senate and, if so, is there proof of
the US Senate advice and consent resolution? Peralta, J., no
part.”

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in

Medellin itself, because the parties intend its provisions to be enforceable,
precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the
VFA has been implemented and executed, with the US faithfully complying with
its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the

Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent
of the US Congress that executive agreements registered under this Act within 60
days from their ratification be immediately implemented. The parties to these
present cases do not question the fact that the VFA has been registered under the
Case-Zablocki Act.

In sum, therefore, the VFA differs from the Vienna Convention on Consular
Relations and the Avena decision of the International Court of Justice (ICJ),
subject matter of the Medellin decision. The Convention and the ICJ decision are
not self-executing and are not registrable under the Case-Zablocki Act, and thus
lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by
the US Senate on March 20, 1952, as reflected in the US Congressional Record,
82nd Congress, Second Session, Vol. 98 – Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of

international law in domestic courts varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION

OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some
countries require legislation whereas others do not.
 304

It was not the intention of the framers of the 1987 Constitution, in adopting
Article XVIII, Sec. 25, to require the other contracting State to convert their
system to achieve alignment and parity with ours. It was simply required that the
treaty be recognized as a treaty by the other contracting State. With that, it
becomes for both parties a binding international obligation and the enforcement of
that obligation is left to the normal recourse and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,421[13]

an executive agreement is a “treaty” within the meaning of that word in
international law and constitutes enforceable domestic law vis-à-vis the United
States. Thus, the US Supreme Court in Weinberger enforced the provisions of the
executive agreement granting preferential employment to Filipinos in the US
Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties – These are advised and consented to by the US
Senate in accordance with Art. II, Sec. 2 of the US Constitution.

2. Executive–Congressional Agreements: These are joint agreements of

the President and Congress and need not be submitted to the Senate.

3. Sole Executive Agreements. – These are agreements entered into by

the President. They are to be submitted to Congress within sixty (60)
days of ratification under the provisions of the Case-Zablocki Act,
after which they are recognized by the Congress and may be
implemented.

As regards the implementation of the RP-US Mutual Defense Treaty,

military aid or assistance has been given under it and this can only be done
through implementing legislation. The VFA itself is another form of
implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of

Appeals’ Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is
MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, is UPHELD
as constitutional, but the Romulo-Kenney Agreements of December 19 and 22,
2006 are DECLARED not in accordance with the VFA, and respondent
Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the
United States representatives for the appropriate agreement on detention facilities
under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending
which the status quo shall be maintained until further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related
matters pending therein, namely, the petition for contempt and the appeal of
L/CPL Daniel Smith from the judgment of conviction.

Section 22. The President shall submit to the Congress within 30 days from
the opening of every regular session, as the basis of the general appropriations
bill, a budget of expenditures and sources of financing, including receipts from
existing and proposed revenue measures.
421[13]
Supra, Note 6.
 305

Section 23. The President shall address the Congress at the opening of its
regular session. He may also appear before it at any other time.
Read: Distinctions between Treaty and executive agreements.
1) GONZALES VS. HECHANOVA, 9 SCRA 280
2) TAN SIN VS. DEPORTATION BOARD, 104 Phil. 868
3) COMMISSIONER OF CUSTOMS VS. EASTERN, 3 SCRA 351
4. Ichong vs. Hernandez, 101 Phil. 1155

11. Under the present Constitution, is the president immune from suit in relation to
acts performed by him or by his subordinates by virtue of his specific orders
during his tenure considering that the immunity from suit provision under the
1973 Constitution was already deleted?

Read:
1) Section 17, Article VII of the 1973 Constitution with the 1984
amendments.
2) HIDALGO VS. MARCOS, 80 SCRA 538
3) CARILLO VS. MARCOS, April 6, 1981
4. MAXIMO SOLIVEN VS. JUDGE MAKASIAR, Nov. 15, 1988

PART VIII
ARTICLE VIII - THE JUDICIAL DEPARTMENT

1. Section 1. The judicial power shall be vested in one Supreme Court and in
such other 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 in excess of jurisdiction on the part of any branch or instrumentality of
the government.

a. What is judicial power?

Read: Badua vs. CBA, February 14, 1991

b. Restrictions to the exercise of judicial power

Political question doctrine

Read:
1) JAVELLANA VS. EXECUTIVE SECRETARY, 50 SCRA 30
2) DE LA LLANA VS. ALBA, 112 SCRA 294
3) ALMARIO VS. ALBA, 127 SCRA 69 (When the question deals with the
necessity, expediency and wisdom of a particuar act, the same is political and not
justiciable)
4. Read again ENRILE VS. JUDGE SALAZAR, June 5, 1990

b-1. Definition of political question

Read:

1. Sanidad vs. Comelec, 73 SCRA 333 Political questions are neatly

associated with the wisdom, not the legality of a particular act. Where the vortex
 306

of the controversy refers to the legality or validity of the contested act, the matter
is definitely justiciable or non-political)
2. Javellana vs. Exec. Secretary, 50 SCRA 30
3. Tanada vs. Cuenco, 103 Phil. (Political questions are questions to be answered
by the people in their sovereign capacity or in regard to which full
discretionary authority is vested to the executive or legislative branch of the
government)

4. Gonzales vs. COMELEC, 21 SCRA 774 (When the crux of the problem
deals with the validity of an act, it is justiciable)

c. Cases on judicial power in general

1) LOPEZ VS. ROXAS, 17 SCRA 756

2) SANTIAGO VS. BAUTISTA, 32 SCRA 188
3) RADIOWEALTH VS. AGRACADA, 86 Phil. 429
4) NOBLEJAS VS. TEEHANKEE, 23 SCRA 405
5) LINA VS. PURISIMA, 82 SCRA 244
6) GARCIA VS. MACARAIG,39 SCRA 106

4. Section 2. The Congress shall have the power to define, prescribe, and
apportion the jurisdiction of the various courts but may not deprive the
Supreme Court of its jurisdiction over cases enumerated in Section 5
hereof.

No law shall be passed reorganizing the judiciary when it undermines the

security of tenure of its members.

3. Section 3. The judiciary shall enjoy fiscal autonomy. Appropriations for

the judiciary may not be reduced by the legislature below the amount
appropriated for the previous year and, after approval, shall be automatically
and regularly released.

4. Section 4. (1) The Supreme Court shall be composed of a Chief Justice

and 14 associate justices. It may sit en banc or in its discretion, in divisions
of 3, 5 or seven members. Any vacancy shall be filled within 90 days from
the occurrence thereof.

(2) All cases involving the constitutionality of a treaty, international or

executive agreement, or law, which shall be heard by the Supreme Court en
banc, including those involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the concurrence of
a majority of the members who actually took part in the deliberations
on the issues in the case and voted thereon.

(Read together with Section 10, Art. X)

LEAGUE OF CITIES OF THE PHILIPPINES VS.

COMELEC, ET AL., GR NO. 176951 , December 21,
2009

VELASCO, JR. J.:

 307

The consolidated petitions for prohibition commenced by the

League of Cities of the Philippines (LCP), City of Iloilo, City of
Calbayog, and Jerry P. Treñas assail the constitutionality of the
sixteen (16) laws, each converting the municipality covered thereby
into a city (cityhood laws, hereinafter) and seek to enjoin the
Commission on Elections (COMELEC) from conducting plebiscites
pursuant to subject laws.

By Decision dated November 18, 2008, the Court en banc, by

a 6-5 vote, granted the petitions and nullified the sixteen (16)
cityhood laws for being violative of the Constitution, specifically its
Section 10, Article X and the equal protection clause.
Subsequently, respondent local government units (LGUs)
moved for reconsideration, raising, as one of the issues, the validity
of the factual premises not contained in the pleadings of the parties,
let alone established, which became the bases of the Decision
subject of reconsideration. By Resolution of March 31, 2009, a
divided Court denied the motion for reconsideration.
A second motion for reconsideration followed in which
respondent LGUs prayed as follows:
WHEREFORE, respondents respectfully pray that the
Honorable Court reconsider its “Resolution” dated March 31, 2009,
in so far as it denies for “lack of merit” respondents’ “Motion for
Reconsideration” dated December 9, 2008 and in lieu thereof,
considering that new and meritorious arguments are raised by
respondents’ “Motion for Reconsideration” dated December 9, 2008
to grant afore-mentioned “Motion for Reconsideration” dated
December 9, 2008 and dismiss the “Petitions For Prohibition” in the
instant case.

Per Resolution dated April 28, 2009, the Court, voting 6-6,
disposed of the motion as follows:
By a vote of 6-6, the Motion for Reconsideration of the
Resolution of 31 March 2009 is DENIED for lack of merit. The
motion is denied since there is no majority that voted to overturn
the Resolution of 31 March 2009.

The Second Motion for Reconsideration of the Decision of

18 November 2008 is DENIED for being a prohibited pleading, and
the Motion for Leave to Admit Attached Petition in Intervention x x
x filed by counsel for Ludivina T. Mas, et al. are also DENIED. No
further pleadings shall be entertained. Let entry of judgment be
made in due course. x x x

On May 14, 2009, respondent LGUs filed a Motion to Amend

the Resolution of April 28, 2009 by Declaring Instead that
Respondents’ “Motion for Reconsideration of the Resolution of
March 31, 2009” and “Motion for Leave to File and to Admit
Attached ‘Second Motion for Reconsideration of the Decision
Dated November 18, 2008’ Remain Unresolved and to Conduct
Further Proceedings Thereon.”
Per its Resolution of June 2, 2009, the Court declared the
May 14, 2009 motion adverted to as expunged in light of the entry
of judgment made on May 21, 2009. Justice Leonardo-De Castro,
however, taking common cause with Justice Bersamin to grant the
motion for reconsideration of the April 28, 2009 Resolution and to
recall the entry of judgment, stated the observation, and with
reason, that the entry was effected “before the Court could act on
the aforesaid motion which was filed within the 15-day period
counted from receipt of the April 28, 2009 Resolution.”
Forthwith, respondent LGUs filed a Motion for
Reconsideration of the Resolution of June 2, 2009 to which some of
the petitioners and petitioners-in-intervention filed their respective
 308

comments. The Court will now rule on this incident. But first, we
set and underscore some basic premises:
(1) The initial motion to reconsider the November 18, 2008
Decision, as Justice Leonardo-De Castro noted, indeed raised new
and substantial issues, inclusive of the matter of the correctness of
the factual premises upon which the said decision was predicated.
The 6-6 vote on the motion for reconsideration per the Resolution
of March 31, 2009, which denied the motion on the sole ground that
“the basic issues have already been passed upon” reflected a
divided Court on the issue of whether or not the underlying
Decision of November 18, 2008 had indeed passed upon the basic
issues raised in the motion for reconsideration of the said decision;
(2) The aforesaid May 14, 2009 Motion to Amend Resolution
of April 28, 2009 was precipitated by the tie vote which served as
basis for the issuance of said resolution. This May 14, 2009
motion––which mainly argued that a tie vote is inadequate to
declare a law unconstitutional–– remains unresolved; and
(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all
cases involving the constitutionality of a law shall be heard by the
Court en banc and decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in
the case and voted thereon.
The basic issue tendered in this motion for reconsideration of
the June 2, 2009 Resolution boils down to whether or not the
required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited
only to the initial vote on the petition or also to the subsequent
voting on the motion for reconsideration where the Court is called
upon and actually votes on the constitutionality of a law or like
issuances. Or, as applied to this case, would a minute resolution
dismissing, on a tie vote, a motion for reconsideration on the sole
stated ground––that the “basic issues have already been passed”––
suffice to hurdle the voting requirement required for a declaration of
the unconstitutionality of the cityhood laws in question?
The 6-6 vote on the motion to reconsider the Resolution of
March 31, 2009, which denied the initial motion on the sole ground
that “the basic issues had already been passed upon” betrayed an
evenly divided Court on the issue of whether or not the underlying
Decision of November 18, 2008 had indeed passed upon the issues
raised in the motion for reconsideration of the said decision. But at
the end of the day, the single issue that matters and the vote that
really counts really turn on the constitutionality of the cityhood
laws. And be it remembered that the inconclusive 6-6 tie vote
reflected in the April 28, 2009 Resolution was the last vote on the
issue of whether or not the cityhood laws infringe the Constitution.
Accordingly, the motions of the respondent LGUs, in light of the 6-
6 vote, should be deliberated anew until the required concurrence
on the issue of the validity or invalidity of the laws in question is,
on the merits, secured.
It ought to be clear that a deadlocked vote does not reflect the
“majority of the Members” contemplated in Sec. 4 (2) of Art. VIII
of the Constitution, which requires that:
All cases involving the constitutionality of a treaty,
international or executive agreement, or law shall be heard by the
Supreme Court en banc, x x x shall be decided with the
concurrence of a majority of the Members who actually took part
in the deliberations on the issues in the case and voted thereon.
(Emphasis added.)
Webster defines “majority” as “a number greater than half of
a total.” In plain language, this means 50% plus one. In Lambino v.
Commission on Elections, Justice, now Chief Justice, Puno, in a
separate opinion, expressed the view that “ a deadlocked vote of six
(6) is not a majority and a non-majority cannot write a rule
with precedential value.”
 309

As may be noted, the aforequoted Sec. 4 of Art. VIII, as

couched, exacts a majority vote in the determination of a case
involving the constitutionality of a statute, without distinguishing
whether such determination is made on the main petition or
thereafter on a motion for reconsideration. This is as it should be,
for, to borrow from the late Justice Ricardo J. Francisco: “x x x
[E]ven assuming x x x that the constitutional requirement on the
concurrence of the ‘majority’ was initially reached in the x x x
ponencia, the same is inconclusive as it was still open for review by
way of a motion for reconsideration.”
To be sure, the Court has taken stock of the rule on a tie-vote
situation, i.e., Sec. 7, Rule 56 and the complementary A.M. No. 99-
1-09- SC, respectively, providing that:
SEC. 7. Procedure if opinion is equally divided . – Where the
court en banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall again be deliberated on, and
if after such deliberation no decision is reached, the original action
commenced in the court shall be dismissed; in appealed cases, the
judgment or order appealed from shall stand affirmed; and on all
incidental matters, the petition or motion shall be denied.

A.M. No. 99-1-09-SC – x x x A motion for reconsideration

of a decision or resolution of the Court En Banc or of a Division
may be granted upon a vote of a majority of the En Banc or of a
Division, as the case may be, who actually took part in the
deliberation of the motion.

If the voting results in a tie, the motion for reconsideration is

deemed denied.
But since the instant cases fall under Sec. 4 (2), Art. VIII of
the Constitution, the aforequoted provisions ought to be applied in
conjunction with the prescription of the Constitution that the cases
“shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the
issues in the instant cases and voted thereon.” To repeat, the last
vote on the issue of the constitutionality of the cityhood bills is that
reflected in the April 28, 2009 Resolution––a 6-6 deadlock.

On the postulate then that first, the finality of the November

18, 2008 Decision has yet to set in, the issuance of the precipitate
entry of judgment notwithstanding, and second, the deadlocked vote
on the second motion for reconsideration did not definitely settle
the constitutionality of the cityhood laws, the Court is inclined to
take another hard look at the underlying decision. Without
belaboring in their smallest details the arguments for and against the
procedural dimension of this disposition, it bears to stress that the
Court has the power to suspend its own rules when the ends of
justice would be served thereby. In the performance of their duties,
courts should not be shackled by stringent rules which would result
in manifest injustice. Rules of procedure are only tools crafted to
facilitate the attainment of justice. Their strict and rigid application
must be eschewed, if they result in technicalities that tend to
frustrate rather than promote substantial justice. Substantial rights
must not be prejudiced by a rigid and technical application of the
rules in the altar of expediency. When a case is impressed with
public interest, a relaxation of the application of the rules is in
order. Time and again, this Court has suspended its own rules or
excepted a particular case from their operation whenever the higher
interests of justice so require.

While perhaps not on all fours with the case, because it

involved a purely business transaction, what the Court said in
Chuidian v. Sandiganbayan is most apropos:
 310

To reiterate what the Court has said in Ginete vs. Court of

Appeals and other cases, the rules of procedure should be viewed as
mere instruments designed to facilitate the attainment of justice.
They are not to be applied with severity and rigidity when such
application would clearly defeat the very rationale for their
conception and existence. Even the Rules of Court reflects this
principle. The power to suspend or even disregard rules, inclusive
of the one-motion rule, can be so pervasive and compelling as to
alter even that which this Court has already declared to be final. The
peculiarities of this case impel us to do so now.

The Court, by a vote of 6-4, grants the respondent LGUs’

motion for reconsideration of the Resolution of June 2, 2009, as
well as their May 14, 2009 motion to consider the second motion
for reconsideration of the November 18, 2008 Decision unresolved,
and also grants said second motion for reconsideration.

This brings us to the substantive aspect of the case.

The Undisputed Factual Antecedents in Brief

During the 11th Congress, fifty-seven (57) cityhood bills

were filed before the House of Representatives. Of the fifty-seven
(57), thirty-three (33) eventually became laws. The twenty-four (24)
other bills were not acted upon.

Later developments saw the introduction in the Senate of

Senate Bill (S. Bill) No. 2157 to amend Sec. 450 of Republic Act
No. (RA) 7160, otherwise known as the Local Government Code
(LGC) of 1991. The proposed amendment sought to increase the
income requirement to qualify for conversion into a city from PhP
20 million average annual income to PhP 100 million locally
generated income.

In March 2001, S. Bill No. 2157 was signed into law as RA

9009 to take effect on June 30, 2001. As thus amended by RA
9009, Sec. 450 of the LGC of 1991 now provides that “[a]
municipality x x x may be converted into a component city if it has
a [certified] locally generated average annual income x x x of at
least [PhP 100 million] for the last two (2) consecutive years based
on 2000 constant prices.”

After the effectivity of RA 9009, the Lower House of the 12 th

Congress adopted in July 2001 House (H.) Joint Resolution No. 29
which, as its title indicated, sought to exempt from the income
requirement prescribed in RA 9009 the 24 municipalities whose
conversions into cities were not acted upon during the previous
Congress. The 12th Congress ended without the Senate approving
H. Joint Resolution No. 29.

Then came the 13th Congress (July 2004 to June 2007),

which saw the House of Representatives re-adopting H. Joint
Resolution No. 29 as H. Joint Resolution No. 1 and forwarding it to
the Senate for approval.

The Senate, however, again failed to approve the joint

resolution. During the Senate session held on November 6, 2006,
Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution
No. 1 would, in net effect, allow a wholesale exemption from the
income requirement imposed under RA 9009 on the municipalities.
For this reason, he suggested the filing by the House of
Representatives of individual bills to pave the way for the
municipalities to become cities and then forwarding them to the
Senate for proper action.
 311

Heeding the advice, sixteen (16) municipalities filed, through

their respective sponsors, individual cityhood bills. Common to all
16 measures was a provision exempting the municipality covered
from the PhP 100 million income requirement.

As of June 7, 2007, both Houses of Congress had approved

the individual cityhood bills, all of which eventually lapsed into law
on various dates. Each cityhood law directs the COMELEC, within
thirty (30) days from its approval, to hold a plebiscite to determine
whether the voters approve of the conversion.

As earlier stated, the instant petitions seek to declare the

cityhood laws unconstitutional for violation of Sec. 10, Art. X of the
Constitution, as well as for violation of the equal-protection clause.
The wholesale conversion of municipalities into cities, the
petitioners bemoan, will reduce the share of existing cities in the
Internal Revenue Allotment (IRA), since more cities will partake of
the internal revenue set aside for all cities under Sec. 285 of the
LGC of 1991.

The Issues

In the main, the issues to which all others must yield pivot on
whether or not the cityhood laws violate (1) Sec. 10. Art. X of
the Constitution and (2) the equal protection clause.

In the November 18, 2008 Decision granting the petitions,

Justice Antonio T. Carpio, for the Court, resolved the twin posers in
the affirmative and accordingly declared the cityhood laws
unconstitutional, deviating as they do from the uniform and non-
discriminatory income criterion prescribed by the LGC of 1991. In
so doing, the ponencia veritably agreed with the petitioners that the
Constitution, in clear and unambiguous language, requires that all
the criteria for the creation of a city shall be embodied and written
in the LGC, and not in any other law.

After a circumspect reflection, the Court is disposed to

reconsider.

Petitioners’ threshold posture, characterized by a strained

interpretation of the Constitution, if accorded cogency, would
veritably curtail and cripple Congress’ valid exercise of its authority
to create political subdivisions.

By constitutional design and as a matter of long-established

principle, the power to create political subdivisions or LGUs is
essentially legislative in character. But even without any
constitutional grant, Congress can, by law, create, divide, merge, or
altogether abolish or alter the boundaries of a province, city, or
municipality. We said as much in the fairly recent case, Sema v.
CIMELEC. The 1987 Constitution, under its Art. X, Sec. 10,
nonetheless provides for the creation of LGUs, thus:

Section 10. 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.)

As may be noted, the afore-quoted provision specifically

provides for the creation of political subdivisions “in accordance
with the criteria established in the local government code,”
subject to the approval of the voters in the unit concerned. The
 312

criteria referred to are the verifiable indicators of viability, i.e., area,

population, and income, now set forth in Sec. 450 of the LGC of
1991, as amended by RA 9009. The petitioners would parlay the
thesis that these indicators or criteria must be written only in the
LGC and not in any other statute. Doubtless, the code they are
referring to is the LGC of 1991. Pushing their point, they conclude
that the cityhood laws that exempted the respondent LGUs from the
income standard spelled out in the amendatory RA 9009 offend the
Constitution.

The supposedly infringed Art. X, Sec. 10 is not a new

constitutional provision. Save for the use of the term “barrio” in
lieu of “barangay,” “may be” instead of “shall,” the change of the
phrase “unit or units” to “political unit” and the addition of the
modifier “directly” to the word “affected,” the aforesaid provision
is a substantial reproduction of Art. XI, Sec. 3 of the 1973
Constitution, which reads:

Section 3. No province, city, municipality, or barrio 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 unit or units affected. (Emphasis
supplied.)

It bears notice, however, that the “code” similarly referred to

in the 1973 and 1987 Constitutions is clearly but a law Congress
enacted. This is consistent with the aforementioned plenary power
of Congress to create political units. Necessarily, since Congress
wields the vast poser of creating political subdivisions, surely it can
exercise the lesser authority of requiring a set of criteria, standards,
or ascertainable indicators of viability for their creation. Thus, the
only conceivable reason why the Constitution employs the clause
“in accordance with the criteria established in the local
government code” is to lay stress that it is Congress alone, and no
other, which can impose the criteria. The eminent constitutionalist,
Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional Law,
specifically on the subject provision, explains:

Prior to 1965, there was a certain lack of clarity with regard

to the power to create, divide, merge, dissolve, or change the
boundaries of municipal corporations. The extent to which the
executive may share in this power was obscured by Cardona v.
Municipality of Binangonan. Pelaez v. Auditor General
subsequently clarified the Cardona case when the Supreme Court
said that “the authority to create municipal corporations is
essentially legislative in nature.” Pelaez, however, conceded that
“the power to fix such common boundary, in order to avoid or settle
conflicts of jurisdiction between adjoining municipalities, may
partake of an administrative nature-involving as it does, the
adoption of means and ways to carry into effect the law creating
said municipalities.” Pelaez was silent about division, merger, and
dissolution of municipal corporations. But since division in effect
creates a new municipality, and both dissolution and merger in
effect abolish a legal creation, it may fairly be inferred that these
acts are also legislative in nature.

Section 10 [Art. X of the 1987 Constitution], which is a

legacy from the 1973 Constitution, goes further than the doctrine in
the Pelaez case. It not only makes creation, division, merger,
abolition or substantial alteration of boundaries of provinces, cities,
municipalities x x x subject to “criteria established in the local
government code,” thereby declaring these actions properly
legislative, but it also makes creation, division, merger, abolition or
 313

substantial alteration of boundaries “subject to approval by a

majority of the votes cast in a plebiscite in the political units
directly affected.” x x x (Emphasis added.)

It remains to be observed at this juncture that when the 1987

Constitution speaks of the LGC, the reference cannot be to any
specific statute or codification of laws, let alone the LGC of 1991.
Be it noted that at the time of the adoption of the 1987 Constitution,
Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect.
Accordingly, had the framers of the 1987 Constitution intended to
isolate the embodiment of the criteria only in the LGC, then they
would have actually referred to BP 337. Also, they would then not
have provided for the enactment by Congress of a new LGC, as
they did in Art. X, Sec. 3 of the Constitution.

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.

Petitioners’ theory that Congress must provide the

criteria solely in the LGC and not in any other law strikes the
Court as illogical. For if we pursue their contention to its logical
conclusion, then RA 9009 embodying the new and increased
income criterion would, in a way, also suffer the vice of
unconstitutionality. It is startling, however, that petitioners do
not question the constitutionality of RA 9009, as they in fact use
said law as an argument for the alleged unconstitutionality of
the cityhood laws.
Exemption from Republic Act No. 9009. – The City of x x x shall
be exempted from the income requirement prescribed under
Republic Act No. 9009.

In any event, petitioners’ constitutional objection would still

be untenable even if we were to assume purely ex hypothesi the
correctness of their underlying thesis, viz: that the conversion of a
municipality to a city shall be in accordance with, among other
things, the income criterion set forth in the LGC of 1991, and in no
other; otherwise, the conversion is invalid. We shall explain.

Looking at the circumstances behind the enactment of the

laws subject of contention, the Court finds that the LGC-amending
RA 9009, no less, intended the LGUs covered by the cityhood laws
to be exempt from the PhP 100 million income criterion. In other
words, the cityhood laws, which merely carried out the intent of RA
9009, adhered, in the final analysis, to the “criteria established in
the Local Government Code,” pursuant to Sec. 10, Art. X of the
1987 Constitution. We shall now proceed to discuss this exemption
angle.

Among the criteria established in the LGC pursuant to

Sec.10, Art. X of the 1987 Constitution are those detailed in Sec.
 314

450 of the LGC of 1991 under the heading “Requisites for

Creation.” The section sets the minimum income qualifying bar
before a municipality or a cluster of barangays may be
considered for cityhood. Originally, Sec. 164 of BP 337 imposed
an average regular annual income “of at least ten million pesos
for the last three consecutive years” as a minimum income
standard for a municipal-to-city conversion. The LGC that BP
337 established was superseded by the LGC of 1991 whose then
Sec. 450 provided that “[a] municipality or cluster of barangays
may be converted into a component city if it has an average
annual income, x x x of at least twenty million pesos
(P20,000,000.00) for at least two (2) consecutive years based on
1991 constant prices x x x.” RA 9009 in turn amended said Sec.
450 by further increasing the income requirement to PhP 100
million, thus:

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 average annual income, as certified by the
Department of Finance, of at least One Hundred Million Pesos
(P100,000,000.00) for the last 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.)

The rationale behind the enactment of RA 9009 to amend

Sec. 450 of the LGC of 1991 can reasonably be deduced from
Senator Pimentel’s sponsorship speech on S. Bill No. 2157. Of
particular significance is his statement regarding the basis for the
proposed increase from PhP 20 million to PhP 100 million in the
income requirement for municipalities wanting to be converted into
cities, viz:

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 [LGC]. However, it is a
fact that there is a mad rush of municipalities wanting to be
converted into cities. Whereas in 1991, when the [LGC] was
approved, there were only 60 cities, today the number has increased
to 85 cities, with 41 more municipalities applying for conversion x
x x. 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
[LGC], 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.

Congress to be sure knew, when RA 9009 was being

deliberated upon, of the pendency of several bills on cityhood,
wherein the applying municipalities were qualified under the then
obtaining PhP 20 million-income threshold. These included
respondent LGUs.

Given the foregoing perspective, it is not amiss to state that

the basis for the inclusion of the exemption clause of the cityhood
laws is the clear-cut intent of Congress of not according retroactive
effect to RA 9009. Not only do the congressional records bear the
 315

legislative intent of exempting the cityhood laws from the income

requirement of PhP 100 million. Congress has now made its
intention to exempt express in the challenged cityhood laws.

It is contended that the deliberations on the cityhood bills and

the covering joint resolution were undertaken in the 11 th and/or the
12th Congress. Accordingly, so the argument goes, such
deliberations, more particularly those on the unapproved resolution
exempting from RA 9009 certain municipalities, are without
significance and would not qualify as extrinsic aids in construing
the cityhood laws that were passed during the 13th Congress,
Congress not being a continuing body.

The argument is specious and glosses over the reality that the
cityhood bills––which were already being deliberated upon even
perhaps before the conception of RA 9009––were again being
considered during the 13th Congress after being tossed around in the
two previous Congresses. And specific reference to the cityhood
bills was also made during the deliberations on RA 9009. At the end
of the day, it is really immaterial if Congress is not a continuing
legislative body. What is important is that the debates, deliberations,
and proceedings of Congress and the steps taken in the enactment of
the law, in this case the cityhood laws in relation to RA 9009 or vice
versa, were part of its legislative history and may be consulted, if
appropriate, as aids in the interpretation of the law. And of course
the earlier cited Drilon-Pimentel exchange on whether or not the 16
municipalities in question would be covered by RA 9009 is another
vital link to the historical chain of the cityhood bills. This and other
proceedings on the bills are spread in the Congressional journals,
which cannot be conveniently reduced to pure rhetoric without
meaning whatsoever, on the simplistic and non-sequitur pretext that
Congress is not a continuing body and that unfinished business in
either chamber is deemed terminated at the end of the term of
Congress.

This brings us to the challenge to the constitutionality of

cityhood laws on equal protection grounds.

To the petitioners, the cityhood laws, by granting special

treatment to respondent municipalities/LGUs by way of exemption
from the standard PhP 100 million minimum income requirement,
violate Sec.1, Art. III of the Constitution, which in part provides
that no person shall “be denied the equal protection of the laws.”

Petitioners’ challenge is not well taken. At its most basic, the

equal protection clause proscribes undue favor as well as hostile
discrimination. Hence, a law need not operate with equal force on
all persons or things to be conformable with Sec. 1, Art. III of the
Constitution.

The equal protection guarantee is embraced in the broader

and elastic concept of due process, every unfair discrimination
being an offense against the requirements of justice and fair play. It
has nonetheless come as a separate clause in Sec. 1, Art. III of the
Constitution to provide for a more specific protection against any
undue discrimination or antagonism from government.
Arbitrariness in general may be assailed on the basis of the due
process clause. But if a particular challenged act partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it
down is the equal protection clause. This constitutional protection
extends to all persons, natural or artificial, within the territorial
jurisdiction. Artificial persons, as the respondent LGUs herein, are,
however, entitled to protection only insofar as their property is
concerned.
 316

As a matter of settled legal principle, the fundamental right of

equal protection does not require absolute equality. It is enough that
all persons or things similarly situated should be treated alike, both
as to rights or privileges conferred and responsibilities or
obligations imposed. The equal protection clause does not preclude
the state from recognizing and acting upon factual differences
between individuals and classes. It recognizes that inherent in the
right to legislate is the right to classify, necessarily implying that the
equality guaranteed is not violated by a legislation based on
reasonable classification. Classification, to be reasonable, must (1)
rest on substantial distinctions; (2) be germane to the purpose of the
law; (3) not be limited to existing conditions only; and (4) apply
equally to all members of the same class. The Court finds that all
these requisites have been met by the laws challenged as arbitrary
and discriminatory under the equal protection clause.

As things stand, the favorable treatment accorded the sixteen

(16) municipalities by the cityhood laws rests on substantial
distinction. Indeed, respondent LGUs, which are subjected only to
the erstwhile PhP 20 million income criterion instead of the
stringent income requirement prescribed in RA 9009, are
substantially different from other municipalities desirous to be
cities. Looking back, we note that respondent LGUs had pending
cityhood bills before the passage of RA 9009. There lies part of the
tipping difference. And years before the enactment of the
amendatory RA 9009, respondents LGUs had already met the
income criterion exacted for cityhood under the LGC of 1991. Due
to extraneous circumstances, however, the bills for their conversion
remained unacted upon by Congress. As aptly observed by then
Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring
H. Joint Resolution No. 1, or the cityhood bills, respondent LGUs
saw themselves confronted with the “changing of the rules in the
middle of the game.”

The classification is also germane to the purpose of the law.

The exemption of respondent LGUs/municipalities from the PhP
100 million income requirement was meant to reduce the inequality
occasioned by the passage of the amendatory RA 9009. From
another perspective, the exemption was unquestionably designed to
insure that fairness and justice would be accorded respondent
LGUs. Let it be noted that what were then the cityhood bills
covering respondent LGUs were part and parcel of the original 57
conversion bills filed in the 11th Congress, 33 of those became laws
before the adjournment of that Congress. The then bills of the
challenged cityhood laws were not acted upon due, inter alia, to the
impeachment of then President Estrada, the related jueteng scandal
investigations conducted before, and the EDSA events that followed
the aborted impeachment.

In summary:

(1) Congress did not intend the increased income

requirement in RA 9009 to apply to the cityhood bills which
became the cityhood laws in question. In other words, Congress
intended the subject cityhood laws to be exempted from the income
requirement of PhP 100 million prescribed by RA 9009;

(2) The cityhood laws merely carry out the intent of RA

9009, now Sec. 450 of the LGC of 1991, to exempt respondent
LGUs from the PhP 100 million income requirement;

(3) The deliberations of the 11th or 12th Congress on

unapproved bills or resolutions are extrinsic aids in interpreting a
law passed in the 13th Congress. It is really immaterial if Congress
 317

is not a continuing body. The hearings and deliberations during the

11th and 12th Congress may still be used as extrinsic reference
inasmuch as the same cityhood bills which were filed before the
passage of RA 9009 were being considered during the 13 th
Congress. Courts may fall back on the history of a law, as here, as
extrinsic aid of statutory construction if the literal application of the
law results in absurdity or injustice.

(4) The exemption accorded the 16 municipalities is based on

the fact that each had pending cityhood bills long before the
enactment of RA 9009 that substantially distinguish them from
other municipalities aiming for cityhood. On top of this, each of the
16 also met the PhP 20 million income level exacted under the
original Sec. 450 of the 1991 LGC.

WHEREFORE, respondent LGUs’ Motion for

Reconsideration dated June 2, 2009, their “Motion to Amend the
Resolution of April 28, 2009 by Declaring Instead that
Respondents’ ‘Motion for Reconsideration of the Resolution of
March 31, 2009’ and ‘Motion for Leave to File and to Admit
Attached Second Motion for Reconsideration of the Decision Dated
November 18, 2008’ Remain Unresolved and to Conduct Further
Proceedings,” dated May 14, 2009, and their second Motion for
Reconsideration of the Decision dated November 18, 2008 are
GRANTED. The June 2, 2009, the March 31, 2009, and April 31,
2009 Resolutions are REVERSED and SET ASIDE. The entry of
judgment made on May 21, 2009 must accordingly be
RECALLED.
The instant consolidated petitions and petitions-in-
intervention are DISMISSED. The cityhood laws, namely Republic
Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405,
9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID
and CONSTITUTIONAL.

(3) Cases or matters heard by a divisions hall be decided or resolved with

the concurrence of a majority of the members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case,
without the concurrence of at least 3 of such members. When the required
number is not obtained, the case shall be decided en banc: Provided, that no
doctrine or principle of law laid down by the court en banc or in division
may be modified or reversed except by the court sitting en banc.
Read:
1) VARGAS VS. RILLORAZA, 80 Phil. 297
2) VIR-JEN SHIPPING VS. NLRC, 125 SCRA 577
3. JANDUSAY VS. CA, 172 SCRA 376

To be decided by the Supreme Court en banc

1. Involving the constitutionality of any law, treaty, etc.;

2. When there is conflict of the decisions of 2 or more divisions of the
Supreme Court;
3. When a case is referred to by the division to the banc and the same was
accepted by the latter;
4. In death penalty cases;

4. Section 5. The Supreme Court shall have the following powers:

 318

(1) Exercise original jurisdiction over cases affecting ambassadors,

other public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:

(a)All cases in which the constitutionality or validity of

any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question;
(b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto;
(c)All cases in which the jurisdiction of any lower court is
in issue;
(d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher;
(e)All cases in which only an error or question of law is
involved.

(3) Assign temporarily judges of lower courts to other stations as

public interest may require. Such temporary assignment shall not
exceed 6 months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage
of justice.
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading , practice , and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the judiciary in
accordance with the civil service law.

(READ: Maniago vs. CA, 253 SCRA on the limitation of the Rules…not to
diminish, increase or modify substantive rights.

a. What is the power of judicial review? What are its requisites?

DISOMANGCOP VS. HON. SIMEON DATUMANONG,

444 SCRA 203

Requisites for the exercise of judicial power.

The following are the requisites for the exercise of judicial power:

a. There must be before the court a case calling for the

exercise of judicial review;
b. The question before the court must be ripe for judicial
adjudication;
 319

c. The person challenging the validity of the act must have

standing to challenge;
d. The question of constitutionality must have been raised
at the earliest opportunity; and
e. The issue of constitutionality must be the very lis mota
of the case.

- Distinguish judicial power from judicial review.

Read:
1. Fernandez vs. Torres, 209 SCRA 677
1-a. Santos III vs. Northwest Airlines, 210 SCRA 256
1-c) ANGARA VS. ELECTORAL COMMISSION, 63 Phil. 139
2) DUMLAO VS. COMELEC, 95 SCRA 392
3. NEPA VS. ONGPIN, 171 SCRA 657
4. Allied Broadcasting Center vs. Rep., Oct. 18, 1991
5. Lagamy vs. CA, 199 SCRA 501

a-1. Functions of Judicial Review

1) legitimizing function
2) checking function
3) symbolic or educational function

Read:
aa. SALONGA VS. PANO, 134 SCRA 438
bb. JAVIER VS. COMELEC, 144 SCRA 194

b. On personality to sue

Is there a difference as to the "personality" requirement if the law being

questioned involves disbursement of public funds and on the other hand, if it does
not .

Standing to question the validity of an

Executive Order which does not involve
disbursement of public funds; Requisites before
the President may issue executive Orders in
furtherance of police power.

EXECUTIVE SECRETARY, ET AL. VS. SOUTHWING

HEAVY INDUSTRIES, 482 SCRA 673

Ynares-Santiago, J

On December 12, 2002, President Arroyo issued EO 156 entitled

“PROVIDING FOR A COMPREHENSIVE INDUSTRIAL POLICY AND
DIRECTIONS FOR THE MOTOR VEHICLE DEVELOPMENT PROGRAM
AND ITS IMPLEMENTING GUIDELINES.”

Under Section 3.1 of the said EO, THE IMPORTATION INTO THE
COUNTRY, INCLUSIVE OF FREEPORT, OF ALL TYPES OF USED MOTOR
VEHICLES IS PROHIBITED.
 320

The private respondent, which has a business of importing all kinds of used
motor vehicles questioned the constitutionality of said EO.

I s s u e s:

1. Does the private respondent have the personality to sue or

to question the constitutionality of EO 156?
2. Does the President have the authority to promulgate EO to
promote police power like in this case?
3. Is EO 156 constitutional?

Held:

1. The private respondent has the personality to sue to

question the constitutionality of an administrative
issuance because it will sustain a direct injury as a
result of its enforcement. Respondents would suffer a
direct injury if said EO will be implemented because
in its Certificate of Registration , it is allowed
import/trade used motor vehicles and spare parts.
Clearly, it would suffer prejudice if importation of all
motor vehicles, not only used cars will be prohibited.
2. The President is authorized to issue an executive
order provided it complies with the following
requisites:

a. Its promulgation must be authorized by the

legislature;
b. It must be promulgated in accordance with
the prescribed procedure;
c. It must be within the scope of the authority
given by the legislature; and
d. It must be reasonable.

There is no question that no less than Art. VI, Section 28 [2] of the
Constitution authorizes Congress to in turn authorize the President by law,
within specified limits, and subject to such restrictions and limitations, to fix
tariff rates, import and export quotas…”. Likewise, the Tariff and Customs
Code likewise delegates to the President similar powers.

3. Is the EO prohibiting the importation of all motor vehicles, not only

used cars constitutional? In this case, while the first two requisites are
present, the 3rd is not. This is so because it is not within the powers of the
President to prohibit the importation of other vehicles, not only cars, even in
the Freeport Zones like Subic which is allowed by RA 7227. The EO
therefore is ultra vires or beyond the limits of the authority conferred on the
President because it tries to supplant or modify the Constitution, its enabling
statute and other existing laws.

The 4th requisite is not also present because the same is unreasonable
since it likewise prohibit the entry of used motor vehicles into the Freeport
which is owed by law, RA 7227.

Read:
1) PASCUAL VS. SEC. OF PUBLIC WORKS, 110 Phil. 331
 321

2) SANIDAD VS. COMELEC, 73 SCRA 333

3) DUMLAO VS. COMELEC, 95 SCRA 392
3-a. Read again NEPA VS. ONGPIN, 171 SCRA 57
4. Kilosbayan vs. Guingona, May 5, 1994
Read this very carefully because it changes the original concept of
personality to sue when public funds are involved or not.
2. TATAD VS. GARCIA, April 6, 1995, 243 SCRA 436 (Even though no public
funds are involved and that petitioner is not directly injured by the contract, he
has the personality to question the same if it involves national interest)
3. BUGNAY CONSTRUCTION VS. LARON, 170 SCRA 240 (If the contract is
for local consumption only, and that the petitioner is not directly injured by the
said contract which does not involve the disbursement of public funds, the
petitioner has no personality to sue)

c. May inferior courts also exercise the power of judicial review in the light of
the requirement of Section 4(2) of Article VIII?

Read: YNOT VS. IAC, March 20, 1987

d. Three views on the effects of declaration of unconstitutionality of a law

Read:
1) NORTON VS. SHELBY COUNTY, 118 US 425
2) SHEPPARD VS. BARREN, 194 US 553
3) DE AGBAYANI VS. PNB, 38 SCRA 429
4) REPUBLIC VS. HEREDA, 119 SCRA 411
5) REPUBLIC VS. CFI, 120 SCRA 151

e. Transfer of venue in criminal cases

Read:
1) PEOPLE VS. GUTIERREZ, 36 SCRA 172
2) PEOPLE VS. SOLA, 103 SCRA 393
3) PEOPLE VS. PILOTIN, 65 SCRA 635

f. Rule making power; note the limitations

Read:
1) BUSTOS VS. LUCERO, 81 Phil. 648
2) NUNEZ VS. SANDIGANBAYAN, 111 SCRA 433

g. On admission to the bar

Read: 1. IN RE CUNANAN, 94 Phil. 534

2. ZALDEVAR VS. GONZALES, Oct. 7, 1988 Re: Indefinite
suspension imposed on RAUL GONZALES)

g-1. May law students practice law before the courts? Requisites?

Read:

Circular No. 19, issued by the Supreme Court on December 19, 1986

h. On the integration of the bar

Read: IN RE EDILLON, 84 SCRA 554

 322

6. Section 6. The Supreme Court shall have administrative supervision over

all courts and the personnel thereof.

Read: DE GUZMAN VS. PEOPLE, 119 SCRA 337

CIVIL SERVICE COMMISSION vs.

HERMINIGILDO ANDAL, G.R. No. 185749,
December 16, 2009

CARPIO, J.:

Herminigildo L. Andal (respondent) holds the

position of Security Guard II in the Sandiganbayan. On 24
January 2000, he filed an application to take the Career
Service Professional Examination-Computer Assisted Test
(CSPE-CAT) and was admitted to take the examination.
The examination results showed that respondent passed the
examination with a rating of 81.03%.

On 25 January 2000, Arlene S. Vito (Vito), claiming

to have been authorized by respondent to secure the results
of the examination, presented a handwritten authorization
allegedly signed by respondent. Upon verification and
comparison of the pictures attached to the Picture Seat Plan
and the identification card of respondent which Vito
presented, there appeared a dissimilarity in the facial
features. Bella A. Mitra, then Officer-in-Charge of the
Examination, Placement and Services Division (EPSD) of
the Civil Service Commission-National Capital Region
(CSC-NCR), issued a Memorandum on the alleged
“impersonation” of respondent and the matter was referred
to the Legal Affairs Division to conduct a fact-finding
investigation. On 29 November 2000, the CSC-NCR
formally charged respondent with dishonesty.

A formal investigation of the case was scheduled on 4

June 2001, 21 November 2001, 5 February 2002, and 10
July 2002. Notices were sent to respondent’s last known
address as indicated in his Application Form but
respondent failed to appear on the scheduled hearings.
Respondent was deemed to have waived his right to appear
at the formal investigation and the case proceeded ex parte.

On 5 August 2005, the CSC-NCR rendered judgment

finding respondent guilty of dishonesty and imposing upon
him the penalty of dismissal from the service.

Aggrieved, respondent appealed to the CSC which

issued Resolution No. 062255 dated 20 December 2006,
the dispositive portion of which reads:

WHEREFORE, the appeal of Herminigildo L. Andal

is hereby DISMISSED. Accordingly, the Decision dated
May 25, 2005 of the Civil Service Commission National
Capital Region (CSC-NCR), Quezon City, finding him
 323

guilty of Dishonesty and imposing upon him the penalty of

dismissal from the service with accessory penalties of
disqualification from re-entering government service,
forfeiture of retirement benefits, and bar from taking any
civil service examination, pursuant to Section 57 of the
Uniformed Rules, is AFFIRMED.

Respondent moved for a reconsideration of the CSC

judgment but the motion was denied in the CSC Resolution
No. 071493 dated 1 August 2007.

Respondent elevated the case to the Court of Appeals

on a petition for review under Rule 43. On 22 September
2008, the Court of Appeals rendered judgment in favor of
respondent, the dispositive portion of which reads:

WHEREFORE, premises considered, the assailed

Decision dated 25 May 2005, Resolution No. 062255 dated
20 December 2006, and Resolution No. 071493 dated 01
August 2007 in Admin. Case No. 00-12-027 are SET
ASIDE and respondent Civil Service Commission is
enjoined from implementing the same. Respondent Civil
Service Commission is hereby ORDERED to immediately
refer said administrative case for Dishonesty against
petitioner Herminigildo L. Andal to the Office of the Court
Administrator, Supreme Court, for appropriate action.

The CSC filed a motion for reconsideration which the

Court of Appeals denied in its Resolution dated 2
December 2008.

Hence, the present petition.

The Issue

The issue in this case is whether or not the Civil

Service Commission has disciplinary jurisdiction to try and
decide administrative cases against court personnel.

HELD:

The CSC’s authority and power to hear and decide

administrative disciplinary cases are not in dispute. The
question is whether the CSC’s disciplinary jurisdiction
extends to court personnel in view of Section 6, Article
VIII of the 1987 Constitution.

The Albao case cited by the CSC is not in point as

Albao was not a court employee but a contractual
employee of the Office of the Vice President. The Albao
case merely affirmed the authority of the CSC to take
cognizance of any irregularity or anomaly connected with
the civil service examinations.

One case in point is Bartolata v. Julaton wherein a

letter-complaint was sent to the CSC Regional Office in
Davao City denouncing the acts of Felicia Julaton
(Julaton), Clerk of Court, and Juanita Tapic (Tapic), Court
 324

Interpreter II, both of the Municipal Trial Court in Cities,

Davao City, Branch 3. The CSC Regional Office in Davao
City discovered that a certain Julaton submitted her
application to take the Civil Service Professional
Examination in 1989 but the picture on the application
form and on the Picture Seat Plan did not resemble the
picture appearing on the appointment of Julaton. The
signature of Julaton affixed to the examination documents
did not match the signature on her PDS. The case was
referred to the Office of the Court Administrator which
recommended that Julaton and Tapic be held liable as
charged. This Court dismissed Julaton from the service,
with forfeiture of all retirement benefits while Tapic, who
had resigned, was fined P25,000 and his retirement
benefits were ordered forfeited.

Likewise, in Civil Service Commission v. Sta. Ana,

the CSC formally charged Zenaida Sta. Ana (Sta. Ana),
Court Stenographer I of the Municipal Circuit Trial Court
of Quezon-Licab, Nueva Ecija with dishonesty, grave
misconduct, and conduct prejudicial to the best interest of
the service for misrepresenting that she took and passed the
CSPE-CAT when in truth and in fact, someone else took
the examinations for her. The CSC found that the picture
and signature in Sta. Ana’s PDS were different from those
appearing in her application form and in the Picture Seat
Plan. Upon the recommendation of the Office of the Court
Administrator, this Court found Sta. Ana guilty of
dishonesty and dismissed her from the service with
forfeiture of retirement benefits.

In the Julaton and Sta. Ana cases, the CSC

recognized the disciplinary jurisdiction of the Supreme
Court over court personnel. This is consonant with Section
6, Article VIII of the 1987 Constitution vesting in the
Supreme Court administrative supervision over all courts
and the personnel thereof, thus:

Sec. 6. The Supreme Court shall have administrative

supervision over all courts and the personnel
thereof.

By virtue of this power, it is only the Supreme Court

that can oversee the judges’ and court personnel’s
administrative compliance with all laws, rules and
regulations. No other branch of government may intrude
into this power, without running afoul of the doctrine of
separation of powers. This we have ruled in Maceda v.
Vasquez and have reiterated in the case of Ampong v. Civil
Service Commission. In Ampong, we also emphasized that
in case of violation of the Civil Service Law by a court
personnel, the standard procedure is for the CSC to bring
its complaint against a judicial employee before the Office
of the Court Administrator of the Supreme Court.
 325

The CSC contends that respondent is now estopped

from assailing the jurisdiction of the CSC when he
voluntarily submitted himself to the CSC-NCR and was
accorded due process, citing the Ampong case.

In Ampong, petitioner in that case admitted her guilt.

She voluntarily went to the CSC regional office, admitted
to the charges leveled against her and waived her right to
the assistance of counsel. She was given ample opportunity
to present her side and adduce evidence in her defense
before the CSC. She filed her answer to the charges against
her and even moved for a reconsideration of the adverse
ruling of the CSC. In short, Ampong did not question the
authority of the CSC and, in fact, actively participated in
the proceedings before it.

In the present case, while respondent may have filed

his Answer to the formal charge of dishonesty after having
been directed to do so, he denied having taken the civil
service examination and did not even appear at the formal
investigation conducted by the CSC-NCR. He appealed to
the CSC after the adverse decision of the CSC-NCR was
rendered but raised the issue of lack of jurisdiction over his
person. He argued that as an employee in the Judiciary,
“the jurisdiction to hear disciplinary action against him
vests with the Sandiganbayan or the Supreme Court.” It
cannot therefore be said that he was estopped from
assailing the jurisdiction of the CSC.

This notwithstanding, we reiterate that we will not

and cannot tolerate dishonesty for the judiciary expects the
highest standard of integrity from all its employees. The
conduct and behavior of everyone connected with an office
charged with the dispensation of justice is circumscribed
with a heavy burden or responsibility. The Court will not
hesitate to rid its ranks of undesirables.

Petition denied but the Civil Service Commission is

directed to refer the case of respondent Herminigildo L.
Andal to the Office of the Court Administrator, for the
filing of the appropriate administrative case against him.

4. Sections 7. (1) No person shall be appointed member of the Supreme

Court or any lower collegiate court unless he is a natural born citizen of
the Philippines. A member of the Supreme Court must be at least 40 years
of age, and must have been for 15 years or more a judge of a lower court
or engaged in the practice of law in the Philippines.

(2) The Congress shall prescribe the qualifications of judges of

lower courts, but no person may be appointed judge thereof unless he is a
citizen of the Philippines and a member of the Philippine Bar.

(3) A member of the judiciary must be a person of proven competence,

integrity, probity and independence.
 326

Section 8. A judicial and bar Council---composition—Chief Justice,

Secretary of Justice, Representative of Congress, Integrated Bar, Professor of
Law, retired justice and representative of the private sector..

The regular members---term of 4 years---Commission on Appointments—

Sec. 9. The members of the Supreme Court and judges of lower court shall
be appointed by the President from a list of at least three nominees prepared by
the Judicial and Bar Council for every vacancy. Such appointments need no
confirmation.

For the lower courts, the President shall issue the appointments within 90
days from the submission of the list.

a. Read:

1. UY vs. Judge Capulong, April 7, 1993

2. Court Administrator vs. Judge Gines

b. Read:

Exec. Order No.216, July 10, 1987, creating the Judicial and Bar council

8. Section 10. The salary of the Chief Justice and the associate justices of the
Supreme Court, and the judges of the lower courts shall be fixed by law. During
their continuance in office, their salary shall not be decreased.

a. See Sec. 17, Art. XVIII

b. Read: 1) NITAFAN VS. COMMISSIONER, 152 SCRA 284
2) PERFECTO VS. MEER, 85 Phil. 552
3) ENDENCIA VS. DAVID, 93 Phil. 696

9. Section 11. The Members of the Supreme Court and judges of the lower court
shall hold office during good behavior until they reach the age of 70 years or
become incapacitated to discharge the duties of their office. The Supreme Court
en banc shall have the power to discipline judges of lower courts, or order their
dismissal by a vote of majority of the members who actually took part in the
deliberations on the issues in the case and voted thereon.

Read: 1) OCAMPO VS. SECRETARY OF JUSTICE, 51 O.G. 147

2) DE LA LLANA VS. ALBA, 112 SCRA 294

10. Section 12. The members of the Supreme Court and other courts established
by law shall not be designated to any agency performing quasi-judicial or
administrative functions.

Read:
1) GARCIA VS. MACARAIG, 39 SCRA 106
2) MANILA ELECTRIC VS. PASAY TRANSPORTATION, 57 Phil. 60
3) LOPEZ VS. ROXAS, 17 SCRA 756
4) IN RE: JUDGE RODOLFO MANZANO, October 5, 1988

11. Sections 13. The conclusions of the Supreme Court in any case submitted to
it for decision en banc or in division shall be reached in consultation before the
case is assigned to a member for the writing o f the opinion o f the court. A
 327

certification to this effect signed by the CJ----Any member who took no part or
dissented…must state the reason therefor. The same procedure in all lower
collegiate courts.

Section 14. No decision shall be rendered by any court without expressing

therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the

court shall be refused due course or denied without stating the legal basis therefor.
Read:
1) AIR FRANCE VS. CARRASCOSO, 18 SCRA 155
2) VDA DE ESPIRITU VS. CFI, 47 SCRA 354
3) BUSCAYNO VS. ENRILE, 102 SCRA 7
4) MANGCA VS. COMELEC, 112 SCRA 273
5) VALLADOLID VS. INCIONG, 121 SCRA 205
6) NAPOLCOM VS. LOOD, 127 SCRA 757
8) NUNAL VS. CA, 169 SCRA 356
9) Mangelen vs. CA, 215 SCRA 230

Requirement that the decision shall state clearly

and distinctly state the law and the facts on
which it is based.

BEDRUZ VS. OFFICE OF THE OMBUDSMAN,

484 SCRA 452

Carpio-Morales, J.

A trial court’s omission to specify the offense committed, or the specific

provision of the law violated, is not in derogation of the constitutional requirement
that every decision must clearly and distinctly state the law and the facts on
which it was based or the factual and legal bases for the conclusions reached by
the trial court as long as the legal basis can be inferred from the discussion in the
decision.

Further, the requirement that the “decision shall state clearly and distinctly
state the law and the facts on which it is based” applies only to a decision of a
court of justice covered by Art. VIII of the Constitution], not the Office of the
Ombudsman.

GERMAN MACHINERIES CORPORATION VS.

ENDAYA, 444 SCRA 329

When Section 14, Article VIII of the

Constitution shall be complied with by the
courts.

Section 14, Art. VIII of the Constitution provides that “no decision shall be
rendered by any court without expressing therein clearly and distinctly the facts
and the law on which it is based.

This constitutional provision applies only to cases submitted for decision,

i.e., given due course and after the filing of briefs or memoranda and/or other
pleadings, BUT NOT WHERE A RESOLUTION IS ISSUED DENYING DUE
COURSE TO THE PETITION AND STATING THE LEGAL BASIS
 328

THEREFOR like “the petition raised are factual or there is no reversible error
in the respondent’s court decision”, there is sufficient compliance with the
constitutional requirement.

In this case , the Court of Appeals dismissed the Petition for Certiorari filed
by the petitioner on the grounds that the factual issues had already been passed
upon by the NLRC, and since its factual findings are in agreement with that of the
Labor Arbiter, the same are binding and conclusive upon the Court of Appeals.
This complies with the constitutional requirement under Section 14, Art. VIII of
the Constitution

12. Section 15. (1) All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within 24 months from date of
submission for the Supreme Court, and unless reduced by the Supreme Court, 12
months for all lower collegiate courts, and 3 months for all other lower courts.

(2) A case shall be deemed submitted for decision or resolution upon the
filing of the last pleading, brief or memorandum required by the Rules of Court or
by the court itself.

(4) Even after the lapse----the court shall still decide without further delay.

Section 16. The Supreme Court shall, within 30 days from the opening of
each regular session of the Congress, submit to the President and the Congress an
annual report on the operations and activities of the judiciary.

Read:
1) CORPUS VS. CA 98 SCRA 424
2) MALACORA VS. CA, 117 SCRA 435
3) MARCELINO VS. CRUZ, 121 SCRA 51
4) DE ROMA VS. CA, 152 SCRA 205
5) Administrative Circular No. 1, issued by the Supreme Court thru CHIEF
JUSTICE CLAUDIO TEEHANKEE on January 28, 1988, particularly par. 11
thereof.

13. Section 16

PART IX
ARTICLE IX - CONSTITUTIONAL COMMISSIONS

1. A & B - Sections 1-8

Section 7. Each Commission shall decide by a majority vote of all its

members any case brought before it…Unless otherwise provided by this
Constitution or by law, any decision, order or ruling of each commission may be
brought to the SC on Certiorari by the aggrieved party within 30 days from receipt
thereof.

NOTE: Section 1, Rule 43 allows the Court of Appeals to have appellate

jurisdiction over decisions of the CSC in accordance with RA 7902)

Section 2, Article IX-B. The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the government, including government owned
and controlled corporations WITH ORIGINAL CHARTERS.
 329

[2] Appointments in the CS shall be made only according to merit and

fitness to be determined as far as practicable, and except as to positions which are
policy determining, primarily confidential or highly technical, by competitive
examination.

[5] The right to self-organization shall not be denied to government

employees.

Policy determining is one charged with laying down of principal or fundamental

guidelines or rules, such as that head of a department.

Primarily confidential position is one denoting not only confidence in the aptitude
of the appointee for the duties of the office but primarily close intimacy which
ensures freedom of intercourse without embarrassment or freedom from
misgivings or betrayals of the personal trust on confidential matters of the state
(Example: Chief Legal Counsel of the PNB, Besa vs. PNB, 33 SCRA 330)

Highly technical position requires the appointee thereto to possess technical skill
or training in the supreme or superior degree.

Section 6. No candidate who has lost in any election shall, within one year after
such election, be appointed to any office in the government or any government
owned or controlled corporations or any of their subsidiaries.

a. Government and controlled corporations

Read:

These cases were decided under the 1973 constitution where it was held that
employees of government owned and controlled corporations, with or without
charters are within the jurisdiction of the Civil Service Commission. Under the
1987 Constitution, there is now a distinction and only those with original charters
shall be under the CSC while those created under the Corporation Code are not.

1) NHC VS. JUCO, 134 SCRA 172

2) MWSS VS. HERNANDEZ, 143 SCRA 602
3) QUIMPO VS. TANODBAYAN, December 2, 1986, 146 SCRA
4) PAL VS. CFI, January 8, 1987

b. Checking function of the CSC

Read:
1) DE LOS SANTOS VS. MALLARE, 87 Phil. 289
2) MEDALLA VS. SAYO, 103 SCRA 587
3) MATURAN VS. MAGLARA, 113 SCRA 268
4) DE GUZMAN VS. SUBIDO, 120 SCRA 443
6) CENTRAL BANK VS. CSC, April 10, 1989

b-1. Security of Tenure

1. Alim vs. CSC, December 2, 1991

2. Marohombsar vs. Alonto, February 25, 1991

b-2. Power of the CSC to change appointee selected

by Head of Office
 330

1. Panis vs. CSC, Feb. 2, 1994

1-b. Home Insurance vs. CSC, March 19, 1993
1-c. Medenilla vs. CSC, February 19, 1991
2. Simpao vs. CSC, November 15, 1990
3. Barrozo vs. CSC and Valentino Julian, June 25, 1991
4. Lapinid vs. CSC, May 14, 1991
5. Santiago vs. CSC, 178 SCRA 733
6. Orbos vs. CSC, Sept. 12, 1990
7. Teologo vs. CSC, Nov. 8, 1990
8. Gaspar vs. CSC, Oct. 18, 1990
9. Luego vs. CSC, 143 SCRA 327

c. Primarily confidential

Read:
1) CADIENTE VS. SANTOS, 142 SCRA 280 (Provincial Legal Officer is a
primarily confidential office, but not his assistant)
2) SAMSON VS. CA, 145 SCRA( The City Legal officer is a primarily
confidential officer)

d. Highly technical/policy determining

1) DE LOS SANTOS VS. MALLARE, 87 Phil. 289

2) MEDALLA VS. SAYO, 103 SCRA 587
3) MATURAN VS. MAGLARA, 113 SCRA 268
4) DE GUZMAN VS. SUBIDO, 120 SCRA 443
5) ANZALDO VS. CLAVE, 119 SCRA 353

e. Dismissal for cause

Read:
1) ANG-ANGCO VS. CASTILLO, 9 SCRA 619
2) VILLALUZ VS. ZALDIVAR, 15 SCRA 710
3) HERNANDEZ VS. VILLEGAS, 14 SCRA 544
4) BRIONES VS. OSMENA, 104 Phil. 588
5) CORPUZ VS. CUADERNO, 13 SCRA 175
6) CRISTOBAL VS. MELCHOR, 78 SCRA 175
7) INGLES VS. MUTUC, 26 SCRA 171
8) ALCOLALO VS. TANTUICO, 83 SCRA 789
9) ABROT VS. CA, 116 SCRA 468
10) GINSON VS. MUN. OF MURCIA, 158 SCRA 1
11) MARCELINO VS. TANTUICO, July 7, 1986
12) CADIENTE VS. SANTOS, June 11, 1986

f. May gov't. employees form unions for purposes of collective bargaining

and to strike against the government?

Read:
1) ALLIANCE OF GOVT. WORKERS VS. MOLE, 124 SCRA 1
2) Executive Order No. 180 , June 1, 1987 authorizing govt.
employees to form unions.
3) SANTOS VS. YATCO, 106 Phil. 745
4) PEOPLE VS. DE VENECIA, 14 SCRA 864
5. SSSEA vs. Court of Appeals, 175 SCRA 686
 331

6. NSC vs. NLRC, 168 SCRA 123

g. May government employees be removed without cause as a result of a

government reorganization?

Read:

RA 6656, June 10, 1988 , An act to protect the security of tenure of civil
service officers and employees in the implementation of government
reorganization.

Read also 1) DARIO VS. MISON, August 8, 1989

2) FLOREZA VS. ONGPIN, February 26, 1990
3) MENDOZA VS. QUISUMBING, June 4, 1990
4. DOTC vs. CSC, October 3, 1991
5. Romualdez vs. CSC, August 12, 1993
6. Torio vs. CSC, 209 SCRA 677

**********************************************

COMMISSION ON ELECTIONS

2. C, Section 1…..any appointment for any vacancy shall only be for the
unexpired term…In no case shall any member be appointed or designated in a
temporary or acting capacity.

Section 2. Powers….enforce and administer all laws relative to the conduct

of election, plebiscite, initiative, referendum and recall….original jurisdiction over
all contests relating to the elections, returns, and qualifications of all elective
regional, provincial and city officials and appellate jurisdiction over all contests
involving elective municipal officials decided by courts of general jurisdiction and
elective barangay officials decided by trial courts of limited jurisdiction.

a. Deputize law enforcement agencies, including the ASFP..

b. Register political parties, except religious groups
c. File complaints for violation of election laws
d. Regulate the enjoyment or utilization of all franchises for the operation of
transportation and other public utilities, media of communication..

a. Term of COMELEC Commissioners

Read:
1. Brillantes vs. Yorac, Dec. 18, 1991
1-a) NP VS. DE VERA, 35 Phil. 126
2) REPUBLIC VS. IMPERIAL, 96 Phil 770

b. Power to enforce and administer laws relative to the conduct of elections.

Read:
1) TICZON VS. COMELEC, 103 SCRA 671
2) SANCHEZ VS. BILIWANG, 114 SCRA 454
3) SANCHEZ VS. BILIWANG, 114 SCRA 454
 332

ABDUL GAFFAR DIBARATUN VS. COMELEC,

G.R. No. 170365, February 2, 2010

This is a petition for certiorari of the Resolution of

the Commission on Elections (COMELEC) en banc dated
October 17, 2005 in SPA No. 02-481, which declared a
failure of elections in Precinct No. 6A/7A, Barangay
Bagoainguid, Municipality of Tugaya, Lanao del Sur and
annulled the proclamation of petitioner Abdul Gaffar P.M.
Dibaratun as the duly elected Punong Barangay of
Barangay Bagoainguid in the July 15, 2002 Synchronized
Barangay and Sangguniang Kabataan Elections.

The facts are as follows:

Respondent Abdulcarim Mala Abubakar, a re-

electionist candidate for the position of Punong Barangay
of Barangay Bagoainguid, Tugaya, Lanao del Sur, filed a
petition before the COMELEC to declare a failure of
elections in Precinct No. 6A/7A, Barangay Bagoainguid,
Tugaya, Lanao del Sur and to annul the proclamation of
petitioner Abdul Gaffar P.M. Dibaratun as the duly elected
Punong Barangay of Barangay Bagoainguid in the July 15,
2002 Synchronized Barangay and Sangguniang Kabataan
Elections.

In his petition, respondent Abubakar alleged:

3. That on July 15, 2002 at around 10:30 o’ clock in the

morning, the casting of votes in the above named precinct
was commenced at its designated Polling Place in Cayagan
Elementary School and while only ten (10) voters had
actually voted, a certain ALIPECRY ACOP GAFFAR, who
is the son of respondent Punong Barangay candidate
ABDULGAFFAR DIBARATUN got inside the polling
place and was caught in possession of Three (3) filled up
ballots where candidate ABDULGAFFAR DIBARATUN
were voted which he wanted to place or insert inside the
ballot box for official (sic).

4. That when said ALIPECRY GAFFAR was confronted by

the petitioner’s watcher and other watchers confronted him
of said official ballots, he got mad and flared up and
committed violence which disrupted and stopped the
casting of votes and because of the commotion, the
chairman left the ballot box which was held by the
companions of Alipecry Acop Gaffar and destroyed the
said ballot box, took the official ballot contained therein
and inserted, placed therein a bundle of substituted ballots.

5. That due to the facts adverted to above, the casting of

votes was stopped and it was never resumed nor
continued. Only Ten (10) voters had actually voted out of
One Hundred Fifty One (151) registered voters.
 333

6. That even candidates for Barangay Chairmen and

Barangay Kagawad were unable to cast their votes because
the casting of votes was illegally disturbed, disrupted,
interrupted and stopped by Alipecry Acop Gaffar despite
the presence of numerous registered voters ready to cast
their votes.

x x x x

9. The Election Officer knowing fully that there was really a

failure of election in the said precinct recommended that a
special election be called for the said precinct.

10. That unknown to the petitioner, the respondent Board of

Election Inspectors, in conspiracy and connivance with
respondent – Abdulgaffar Dibaratun, surreptitiously and
clandestinely canvassed the election returns and then
illegally proclaimed the respondent Abdulgaffar Dibaratun
and issued Certificate of Canvass of Votes and
Proclamation of Winning Candidates dated July 16, 2002
which was ant[e]dated xerox copy of which is hereto
attached as Annex “C” hereof.

Respondents therein filed their Answer denying the

allegations of herein private respondent. They contended
that as 10 voters had actually voted, there was no failure of
elections in the aforementioned precinct. They further
contended that the petition was filed out of time.

In the Resolution dated October 17, 2005, the

COMELEC en banc granted the petition, the dispositive
portion of which reads:

WHEREFORE, premises considered, the

Commission (en banc) RESOLVED, as it hereby
RESOLVES, to GIVE DUE COURSE to the instant
petition.

ACCORDINGLY, the proclamation of respondent

Abdulgaffar P.M. Dibaratun as the duly elected Punong
Barangay of Barangay Bagoainguid, Tugaya, Lanao del
Sur is hereby ANNULLED and he is thus ORDERED to
CEASE AND DESIST from exercising the powers and
responsibilities of the said office. Pending the conduct of
the special elections yet to be scheduled by this
Commission and until no Punong Barangay has been duly
elected and qualified, the incumbent Punong Barangay
shall continue to exercise the powers and duties of such
office in a hold-over capacity in accordance with Section 5
of R.A. No. 9164 (An Act Providing for Synchronized
Barangay and Sangguniang Kabataan Elections, Amending
Republic Act No. 7160, As Amended, Otherwise Known as
The ‘Local Government Code of 1991,’ and For Other
Purposes).
 334

Let the Office of the Deputy Executive Director for

Operations (ODEDO), this Commission, furnish a copy of
this Resolution to the Provincial Election Supervisor of
Lanao del Sur for the implementation of the same upon its
finality.

I S S U E:

The main issue is whether or not the COMELEC en

banc committed grave abuse of discretion amounting to
lack or excess of jurisdiction in declaring a failure of
elections in Precinct No. 6A/7A of Barangay Bagoainguid,
Tugaya, Lanao del Sur and in annulling the proclamation
of petitioner as the elected Punong Barangay.

The petition is unmeritorious.

The 1987 Constitution vests in the COMELEC the

broad power to enforce all the laws and regulations relative
to the conduct of elections, as well as the plenary authority
to decide all questions affecting elections except the
question as to the right to vote.

Section 6 of the Omnibus Election Code provides for

the instances when the COMELEC may declare failure of
elections, thus:

SEC. 6. Failure of election. – If, on account of force

majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held
on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of
the election returns or in the custody or canvass thereof,
such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of
a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the
election or failure to elect.

In its Resolution, the COMELEC en banc, citing

Banaga, Jr. v. Commission on Elections, enumerated the
three instances when a failure of elections may be declared
by the Commission:
 335

(1) the election in any polling place has not been held on the
date fixed on account of force majeure, violence, terrorism,
fraud or other analogous causes;

(2) the election in any polling place had been suspended

before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism,
fraud or other analogous causes; or

(3) after the voting and during the preparation and

transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect on
account of force majeure, violence, terrorism, fraud or
other analogous causes.

The COMELEC en banc based its decision to declare

a failure of elections in Precinct No. 6A/7A on the second
instance stated in Section 6 of the Omnibus Election Code,
that is, the election in any polling place had been
suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence, terrorism,
fraud or other analogous causes.

The COMELEC en banc held that in this case, it was

undisputed that after only 10 registered voters cast their
votes, the voting was suspended before the hour fixed by
law by reason of violence. This was supported by the
affidavits submitted by both petitioner and private
respondent, who only disagreed as to the perpetrator of the
violence as each party blamed the other party.

The findings of fact of the COMELEC en banc are

binding on this Court. The grounds for failure of election
(i.e., force majeure, violence, terrorism, fraud, or other
analogous cases) involve questions of fact, which can only
be determined by the COMELEC en banc after due notice
to and hearing of the parties. An application for certiorari
against actions of the COMELEC is confined to instances
of grave abuse of discretion, amounting to lack or excess
of jurisdiction. The COMELEC, as the administrative
agency and specialized constitutional body charged with
the enforcement and administration of all laws and
regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall, has the
expertise in its field so that its findings and conclusions are
generally respected by and conclusive on the Court.

Thus, the Court agrees with the COMELEC that the

elections in Precinct No. 6A/7A were suspended before the
hour fixed by law for the closing of the voting due to
violence. Only 10 voters were able to cast their votes out
of 151 registered voters; hence, the votes not cast would
have affected the result of the elections. The concurrence
of these two conditions caused the COMELEC en banc to
declare a failure of elections. When there is failure of
elections, the COMELEC is empowered to annul the
 336

elections and to call for special elections. Public

respondent, therefore, did not commit grave abuse of
discretion in its resolution of the case.

b-1. Powers of the COMELEC

1. PANGILINAN VS. COMELEC, NOVEMBER 18, 1993

2. NPC VS. COMELEC, 207 SCRA 1
3. Labo vs. Comelec, 211 SCRA 297

c. Sole judge of all election contests

Read:
1) GABATAN VS. COMELEC, 122 SCRA 1
2) GAD VS. COMELEC, May 26, 1987
3) UPP-KBL VS. COMELEC, June 4, 1987
4) DEFERIA VS. PARAS, 141 SCRA 518

SANDRA ERIGUEL VS. COMELEC and MA. THERESA

DUMPIT-MICHELENA, G.R. No. 190526, February 26, 2010

VILLARAMA, JR., J.:

ISSUES:

May a division of the Commission on Elections (COMELEC)

elevate an appeal to the Commission en banc without first resolving
it for lack of quorum because other members inhibited themselves?
And in connection with the said appeal, may the COMELEC en
banc legally proceed with a fresh appreciation of the contested
ballots without first ascertaining that the same have been kept
inviolate?

FACTS:

Petitioner Sandra Eriguel (Eriguel) and private respondent

Ma. Theresa Dumpit-Michelena (Dumpit) were mayoralty
candidates in Agoo, La Union during the May 14, 2007 elections.

On May 18, 2007, after the canvassing and counting of votes,

Eriguel was proclaimed as the duly elected mayor of the
Municipality of Agoo. Eriguel received 11,803 votes against
Dumpit’s 7,899 votes, translating to a margin of 3,904 votes.

On May 28, 2007, Dumpit filed an Election Protest Ad

Cautelam before the Regional Trial Court (RTC) of Agoo, La Union
contesting the appreciation and counting of ballots in 152 precincts
in Agoo. Dumpit alleged that some of the ballots cast in favor of
Eriguel were erroneously counted and appreciated in the latter’s
favor despite containing markings and identical symbols. Dumpit
also alleged that while a number of ballots containing Eriguel’s
name were written by only one (1) person, the same were still
counted in the latter’s favor.

Initially, the RTC dismissed the election protest on May 31,

2007 due to Dumpit’s failure to specify the number of votes
credited to the parties per proclamation as required by Section
11(c), Rule 2 of A.M. No. 07-4-15-SC. The protest was, however,
reinstated following Dumpit’s filing of a motion for reconsideration.
 337

Preliminary conference was then conducted on June 15, 2007.

Revision of ballots followed shortly thereafter and was completed
on July 18, 2007. The results of the revision showed that Eriguel
had 11,678 votes against Dumpit’s 7,839 votes, or a lead of 3,839
votes.

On Dumpit’s motion, the RTC conducted a technical

examination of the ballots. Senior Document Examiner Antonio
Magbojos of the National Bureau of Investigation (NBI)
Questioned Documents Division conducted the technical
examination for Dumpit, while Chief Inspector Jose Wacangan of
the Regional Crime Laboratory Office No.1 of the Philippine
National Police (PNP) conducted the examination for Eriguel.
Eight (8) other witnesses for Dumpit also testified during the trial.

On December 7, 2007, the trial court issued a decision

upholding Eriguel’s proclamation.

Unsatisfied with the findings, Dumpit appealed to the

COMELEC. The case was docketed as EAC No. A-01-2008, and
was initially assigned to the Special Second Division composed of
Presiding Commissioner Rene V. Sarmiento and Commissioner
Nicodemo T. Ferrer. Commissioner Ferrer, however, decided to
inhibit himself. This prompted Presiding Commissioner Sarmiento
to issue an Order dated July 22, 2009 elevating the appeal to the
Commission en banc. The transfer of the case to the Commission
en banc was apparently made pursuant to Section 5(b), Rule 3 of
the COMELEC Rules of Procedure, which states,

SEC. 5. Quorum; Votes Required. – (a) x x x

(b) When sitting in Divisions, two (2) Members of a

Division shall constitute a quorum to transact business. The
concurrence of at least two (2) Members of a Division shall be
necessary to reach a decision, resolution, order or ruling. If this
required number is not obtained, the case shall be automatically
elevated to the Commission en banc for decision or resolution.
Thereafter, the Commission en banc proceeded to conduct a
fresh appreciation of the contested ballots. On December 9, 2009,
after an exhaustive appreciation of all the contested ballots, the
Commission en banc promulgated a resolution nullifying 3,711
ballots cast in favor of Eriguel after finding the same to have been
written by only one (1) or two (2) persons.

On this note, the Commission en banc set aside the RTC’s

decision and declared Dumpit as the duly elected mayor of Agoo,
La Union, for having garnered 167 more votes than Eriguel.

HELD:

Eriguel essentially raises the following two issues: (1)

procedurally, whether the Special Second Division of the
COMELEC gravely abused its authority when it automatically
elevated Dumpit’s appeal to the Commission en banc after only one
commissioner was left to deal with the case; and (2) substantively,
whether the COMELEC en banc’s fresh appreciation of the
contested ballots without first ascertaining the integrity thereof
violated the doctrine enunciated in Rosal v. Commission on
Elections.

We find the petition meritorious.

 338

I. Automatic elevation of the appeal to the Commission en

banc is invalid

The COMELEC, in the exercise of its quasi-judicial

functions, is bound to follow the provision set forth in Section 3,
Article IX-C of the 1987 Constitution, which reads:

SEC. 3. The Commission on Elections may sit en banc or in

two divisions, and shall promulgate its rules of procedure in order
to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided
in division, provided that motions for reconsideration of
decisions shall be decided by the Commission en banc.

It therefore follows that when the COMELEC is exercising

its quasi-judicial powers such as in the present case, the
Commission is constitutionally mandated to decide the case first in
division, and en banc only upon motion for reconsideration.

Indeed, it is a basic doctrine in procedural law that the

jurisdiction of a court or an agency exercising quasi-judicial
functions (such as the COMELEC) over the subject-matter of an
action is conferred only by the Constitution or by law. Jurisdiction
cannot be fixed by the agreement of the parties; it cannot be
acquired through, or waived, enlarged or diminished by, any act or
omission of the parties. Neither can it be conferred by the
acquiescence of the court, more particularly so in election cases
where the interest involved transcends those of the contending
parties.

This being so, the Special Second Division of the COMELEC

clearly acted with grave abuse of discretion when it immediately
transferred to the Commission en banc a case that ought to be heard
and decided by a division. Such action cannot be done without
running afoul of Section 3, Article IX-C of the 1987 Constitution.
Instead of peremptorily transferring the case to the Commission en
banc, the Special Second Division of COMELEC, should have
instead assigned another Commissioner as additional member of its
Special Second Division, not only to fill in the seat temporarily
vacated by Commissioner Ferrer, but more importantly so that the
required quorum may be attained.

Emphasis must be made that it is the COMELEC division

that has original appellate jurisdiction to resolve an appeal to an
election protest decided by a trial court. Conclusively, the
Commission en banc acted without jurisdiction when it heard and
decided Dumpit’s appeal.

II. The COMELEC cannot proceed to conduct a fresh

appreciation of ballots without first ascertaining the integrity
thereof

The records of the case also indicate that the COMELEC en

banc proceeded to conduct a fresh appreciation of the contested
ballots without first ascertaining whether the ballots to be recounted
had been kept inviolate. This lackadaisical and flawed procedure on
the part of the COMELEC is further highlighted by the fact that as
early as August 10, 2009, COMELEC Chairman Jose A.R. Melo
has already issued an order to the Commission’s Law Department to
investigate why some election returns in La Union were missing,
while some of the ballot boxes appeared to have been tampered
with.
 339

On December 4, 2009, Eriguel even filed an omnibus motion

expressing concern over the discovery and praying that she be
informed of the status of the investigation in order to ensure that the
ballots being appreciated by the Commission at that time were still
the same ballots that had been cast by the electorate of Agoo. The
motion, however, remained unresolved as the Commission en banc
proceeded with the appreciation of ballots and, eventually,
promulgated the assailed Resolution five (5) days thereafter.

Under such circumstances, the question as to who between

the parties was duly elected mayor of Agoo, La Union still cannot
be settled without conducting proper proceedings in the
COMELEC. Therefore, we are left with no other recourse but to set
aside the assailed Resolution for being both procedurally and
substantively infirm.

Accordingly, the COMELEC is hereby ordered to re-raffle

and assign the case to one (1) of its divisions, and to issue an order
that an additional member be appointed to the assigned division
should it later on be determined that the required quorum still could
not be attained. Since the custody of the ballot boxes has already
been transferred to the COMELEC, the COMELEC division to
which the case shall be assigned must, prior to proceeding with a
fresh appreciation of the ballots, determine whether the ballot boxes
for the Municipality of Agoo sufficiently retained their integrity as
to justify the conclusion that the ballots contained therein could be
relied on as better evidence than the election returns. The
COMELEC division shall also determine which ballot boxes in the
said municipality were in such a condition as would afford
reasonable opportunity for unauthorized persons to gain unlawful
access to their contents. Should it be found that there are such ballot
boxes, the ballots contained therein shall be held to have lost all
probative value and should not be used to set aside the official
count in the election returns, following our ruling in Rosal.

We likewise remind the COMELEC to be more prudent and

circumspect in resolving election protests by following the proper
procedure, whether in the exercise of its original or appellate
jurisdiction, in order not to frustrate the true will of the electorate.
Otherwise, the very foundation of our democratic processes may
just as well be easily and expediently compromised.

WHEREFORE, the instant petition is GRANTED. The

Resolution dated December 9, 2009 of the Commission on
Elections en banc in EAC No. A-01-2008 is hereby declared NULL
and VOID. The Commission on Elections is hereby DIRECTED to
re-raffle and assign the case to one (1) of its divisions, and to
proceed with the resolution of the case with utmost dispatch. To this
end, it shall:

(1) identify which of the ballot boxes were otherwise preserved with
such substantial compliance with statutory safety measures as to
preclude reasonable opportunity for tampering with their contents.
The ballots from these precincts shall be deemed to have retained
their integrity in the absence of evidence to the contrary and the
Commission on Elections may consider them in the recount; and

(2) ascertain which of the ballot boxes were found in such a condition
as would afford reasonable opportunity for unauthorized persons to
gain unlawful access to their contents. The Commission on
Elections shall exclude from the recount the ballots from these
 340

boxes and shall rely instead on the official count as stated in the
election returns.

d. Distinguish referendum from plebiscite

Read: SANIDAD VS. COMELEC, 73 SCRA 333

e. Cases to be decided by the COMELEC EN BANC OR IN DIVISION

Read:
CUA VS. COMELEC, 156 SCRA 582

f. Regulation and control of public utilities like TV stations during the

election period
Read: UNIDO VS. COMELEC, 104 SCRA 17

g. Election inspectors
Read: KBL VS. COMELEC, December 11, 1986

h. Are decisions of the COMELEC appealable? If so, to what court? On what

ground or grounds?
Read:

1. Galido vs. Comelec, January 18, 1991

2. Garcia vs. De Jesus, March 4, 1992

3. Art. IX-D, Secs. 1-4

Powers of the COA

Read:

1. Caltex vs. COA, 208 SCRA 726

2. Bustamante vs. COA, 216 SCRA 134
3. Orocio vs. COA, 213 SCRA 109

PART X
ARTICLE X - LOCAL GOVERNMENT

1. Sections 1 & 2. ..shall enjoy local/fiscal autonomy

PROVINCE OF BATANGAS VS. HON. ALBERTO

ROMULO, ET AL., May 27, 2004

Local Autonomy; automatic release of funds of

Local Government Units, particularly the IRA.

The petitioner is questioning the constitutionality of the General

Appropriations Act of 1999, 2000 and 2001 insofar as they uniformly earmarked
for each year the amount of P5B of the Internal Revenue Allotment (IRA) for the
Local Government Service Equalization Fund (LGSEF) and imposed conditions
for the release thereof.

Likewise, the President of the Philippines issued Executive Order No. 48

entitled “Establishing a Program fro Devolution Adjustment and Equalization “
with the purpose of facilitating the process of enhancing the capacities of LGU’s
 341

in the discharge of the functions and services devolved tot hem by the national
government agencies concerned pursuant to the Local Government Code.

Issue:

May the Congress or the President impose conditions for the use of the IRA
by the different local government units?

Held:

The provision of the GAA for the years 1999, 2000 and 2001 are
unconstitutional as they encroach on the fiscal autonomy of the local government
units in violation of the Constitution. And even if this case is already moot and
academic because said provisions have been implemented, there is a possibility
that the same be incorporated in the future GAA or it is capable of repetition and
as such, it must be decided before another GAA is enacted. It behooves this Court
to make a categorical ruling on the substantive issue now to formulate controlling
principles to guide the bench, bar and the public.

Likewise, the act of the President as embodied in EO No. 48 is

unconstitutional because it amounts to control to local government units when the
President’s power over local government units is confined to general supervision,
not power of control. The distinctions of the two powers were enunciated in
Drilon vs. Lim, 235 SCRA 135. Thus:

An officer in control lays down the rules in the doing

of an act. If they are not followed, he may in his discretion,
order the act undone or re-done by his subordinate or he
may even decide to do it himself. Supervision does not
cover such authority. The supervisor merely sees to it that
the rules are followed, but he himself does not lay down
such rules, nor does he have any discretion to modify or
replace them. If the rules are not observed, he may order
the work done or re-done but only to conform to the
prescribed rules. He may not prescribe his own manner of
doing the act. He has no judgment on this matter except to
see to it that the rules are followed.

Section 286 of the Local Government Code is very clear since it provides
that the share of each local government unit shall be released without need of any
further action, DIRECTLY TO THE PROVINCIAL, CITY, MUNICIPAL OR
BARANGAY TREASURER as the case may be on a quarterly basis…and which
may not be the subject to any lien or holdback that may be imposed by the
national government for whatever purpose.

Finally, Section 2, Art. X of the Constitution expressly mandates that the

local government units shall enjoy local autonomy as well as Section 25, Art. II of
the Constitution.

2. Section 3.. there shall be a LGC which shall provide a more responsive and
accountable local government with effective mechanisms of recall, initiative and
referendum….
Read:
1) 1991 Local Government Code on Recall, requisites, grounds and
procedures) and other important aspects.
 342

2. Exec. Order 249

Residence requirement for local government positions.

TESS DUMPIT-MICHELENA VS. BOADO, ET AL.,

475 SCRA 290

Carpio, J.

Facts:

The petitioner who is the daughter of Rep. Tomas Dumpit, 2 nd District of La

Union, filed her Certificate of Candidacy for Municipal Mayor of Agoo, La Union
for the May, 2004 elections. The respondents filed a case for her disqualification
on the ground that she is a registered voter of Naguilian , La Union and only
transferred her registration as a voter to San Julian West, Agoo, La Union, on
October 24, 2003. Her presence in San Julian West, Agoo, La Union was noticed
only after her certificate of candidacy. Barangay officials claimed in an affidavit
that she is not a resident of the said Barangay.

The petitioner countered that she acquired a new domicile in San Juan West
when she purchased from her father a residential lot on April 19, 2003 and she
even designated a person as caretaker of her residential house.

Held:

While residence and domicile are synonymous, domicile of origin is not

easily lost. To successfully effect a change of domicile, the following requisites
must be present:

1. an actual removal or actual change of domicile;

2. a bona fide intention of abandoning the former place of residence and
establishing a new one; and
3. acts which correspond with the purpose.

In the case of petitioner while she bought a parcel of land in San Julian
West, Agoo, La Union on April 19, 2003, property ownership is not an indicia of
the right to vote or voted for an office.

To effect a change of residence, there must be animus manendi coupled with

animus non revertendi. The intent to remain in the new domicile of choice must
be for an indefinite period of time, change of domicile or residence must be
voluntary and the residence a the place chose for the new domicile must be actual.

In the case at bar, what was constructed by the petitioner on said lot was a
beach house which is at most a temporary place of relaxation. It can hardly be
considered a place of residence. Finally, in the Special Power of attorney
designating a caretaker with a monthly salary of P2,500.00, it was shown that she
is a resident of San Julian West, Agoo, La Union and No. 6 butterfly St., Valle
Verde 6, Pasig, Memtro Manila. This shows that she has a number of residences
and the acquisition of another one does not automatically make the recently
acquired residence her new domicile.
 343

Tess Dumpit-Michelena’s cancellation of Certificate of Candidacy for

Municipal Mayor of Agoo, La Union, is therefore valid.

2-a. Recall

a. What are the requisites under the Local Government Code of 1991?

b. Read:
1. Garcia vs. COMELEC, October 5, 1993
2. Sanchez vs. Comelec, January 24, 1991

3. Section 4. The President shall exercise general supervision over local

governments…
Read: MONDANO VS. SILVOSA, 97 Phil. 143

5. Sections 5.. Shall have the power to create their own revenues…
6. Section 6..shall have a just share in the national taxes which shall be
automatically released to them..

Read:
1. Basco vs. Pagcor, 197 SCRA 52
1-a. Philippine Petroleum Corp. vs. Municipality of Pililla, 198 SCRA 82
1-b) WILLIAM LINES VS. CITY OF OZAMIS, 56 SCRA 590
1-c. Estanislao vs. Hon. Costales, May 8, 1991
2) VELASCO VS. BLAS, 115 SCRA 540
3) DE LA CRUZ VS. PARAS, 123 SCRA 569
4) MUNICIPALITY OF ECHAGUE VS. ABELLERA, December 12, 1986, 146
SCRA
5) PHILIPPINE GAMEFOWL COMMISSION VS. LAC, December 17, 1986,
146 SCRA
6. MUNICIPALITY OF MALOLOS VS. LIBANGAN SA
MALOLOS, 159 SCRA 525

Section 8. The term of office of elective local officials shall be not more than 3
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.

BENJAMIN BORJA VS. COMELEC, and JOSE T.

CAPCO, JR., G.R. No. 133495, September 3, 1998

Mendoza, J.

Issue:

Whether a Vice Mayor who succeeds to the Office of the Mayor by

operation of law and serves the remainder of the term is considered to have served
a term for the purpose of the three-term limit on local officials as provided under
the Local Government Code.

Held:

No.

Article X, Section 8 of the Constitution provides:

 344

Section. The term of office of elective local officials, except

barangay officials, shall be determined by law, which 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.

The above provision of the Constitution is restated in Section 43 [b] of RA

No. 7160, the Local Government Code.

The term limit for local elective officials must be taken to refer to the right
to be elected as well as the right to serve in the same elective position.
Consequently, IT IS NOT ENOUGH THAT AN INDIVIDUAL HAS SERVED
THREE CONSECUTIVE TERMS IN AN ELECTIVE LOCAL OFFICE, HE
MUST ALSO HAVE BEEN ELECTED TO THE SAME POSITION FOR THE
SAME NUMBER OF TIMES BEFORE THE DISQUALIFICATION CAN
APPLY.

Clearly, therefore, before the disqualification could apply, the following

requisites must be present:

1. the local official must have been elected for the same position [Example:
Mayor] three times; and
2. the local official must have served three consecutive terms as Mayor.

In the present case, only the 2nd requisite is present since in 1988, the private
respondent was not a candidate for Mayor in 1988 but as Vice Mayor though he
succeeded the elected mayor in 1989. It was only in 1992 and 1995 that he was a
candidate for Mayor. As such, he could still be a candidate for Mayor in the May,
1998 elections.

(NOTE: Applying the above doctrine, MAYOR MAURICIO DOMOGAN

of Baguio City is not prohibited from running for City Mayor of Baguio in the
2001 elections because he was not elected as City Mayor in 1992 though he
served as City Mayor since 1992 as a result of the disqualification of RAMON
LABO, JR.. His 1992-1995 term was not by election but by operation of law. It
was only in 1995 and 1998 that he was a candidate for City Mayor (2 times)
though he served 3 TERMS as Mayor. The first requisite before the
disqualification applies to him is not present)

ROMEO LONZANIDA VS. COMELEC, July 28, 1999,

311 SCRA 602

The petitioner was elected Mayor for three (3) consecutive terms. During his
rd
3 term (1995 elections), he was proclaimed the winner but his opponent filed an
election protest and two (2) months before the next election and 4 months before
the end of his 3rd term , the COMELEC declared his opponent to be the winner
and was able to occupy the position of Mayor for 2 months.

Is he entitled to run for the position of mayor in the election after he was
declared a loser during his 3rd term but he almost completed 3 terms?

Held:
 345

Yes because in order that the prohibition shall apply to him, the following
requisites must be present:

1. the local official must have been elected for the same position [Example:
Mayor] three times; and
2. the local official must have fully served three consecutive terms as
Mayor.

In this case, he was not elected to the position 3 times because he lost during
rd
the 3 time though he served the office for 2 years and 10 months. Likewise even
assuming that he won the 3rd election, he did not fully serve the term of 3 years. It
is not enough that an individual has served 3 consecutive terms in an elective local
office, he must have also been elected to the same position for the same number of
times before the disqualification can apply.

Prohibition to run for more than 3

consecutive terms.

FEDERICO T. MONTEBON vs. COMELEC & ELEANOR

ONDOY, G.R. No. 180444 , April 8, 2008

Petitioners Montebon, Ondoy and respondent Potencioso, Jr. were

candidates for municipal councilor of the Municipality of Tuburan, Cebu for the
May 14, 2007 Synchronized National and Local Elections. On April 30, 2007,
petitioners and other candidates 422[4] for municipal councilor filed a petition for
disqualification against respondent with the COMELEC alleging that respondent
had been elected and served three consecutive terms as municipal councilor in
1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for
the same position in the 2007 elections as it would be his fourth consecutive term.

In his answer, respondent admitted that he had been elected for three
consecutive terms as municipal councilor. However, he claimed that the service
of his second term in 2001-2004 was interrupted on January 12, 2004 when he
succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo
L. Mendoza. Consequently, he is not disqualified from vying for the position of
municipal councilor in the 2007 elections.

In the hearing of May 10, 2007, the parties were directed to file their
respective memoranda.

In petitioners’ memorandum, they maintained that respondent’s assumption

of office as vice-mayor in January 2004 should not be considered an interruption
in the service of his second term since it was a voluntary renunciation of his office
as municipal councilor. They argued that, according to the law, voluntary
renunciation of the office for any length of time shall not be considered an
interruption in the continuity of service for the full term for which the official
concerned was elected.

On the other hand, respondent alleged that a local elective official is not
disqualified from running for the fourth consecutive time to the same office if
there was an interruption in one of the previous three terms.

On June 2, 2007, the COMELEC First Division denied the petition for
disqualification ruling that respondent’s assumption of office as vice-mayor
422[4]
Jesus C. Mendoza, Teopisto C. Prosia, Jr., Nicolas Y. Edillon, Ernesto B. Caga, Albaerto T. Gallarde, and Eugenio M. Arigo.
 346

should be considered an interruption in the continuity of his service. His second

term having been involuntarily interrupted, respondent should thus not be
disqualified to seek reelection as municipal councilor. 423[5]

On appeal, the COMELEC En Banc upheld the ruling of the First Division,
as follows:

Respondent’s assumption to the office of the vice-mayor of Tuburan in

January 2004 during his second term as councilor is not a voluntary
renunciation of the latter office. The same therefore operated as an effective
disruption in the full service of his second term as councilor. Thus, in
running for councilor again in the May 14, 2007 Elections, respondent is
deemed to be running only for a second consecutive term as councilor of
Tuburan, the first consecutive term fully served being his 2004-2007 term.

Petitioner Montebon’s and Ondoy’s June 9, 2007 manifestation and

omnibus motion are hereby declared moot and academic with the instant
disposition of their motion for reconsideration.

WHEREFORE, premises considered, petitioners’ motion for

reconsideration is hereby DENIED for lack of merit.

SO ORDERED.424[6]

Petitioners filed the instant petition for certiorari on the ground that the
COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that respondent’s assumption of office as vice-mayor in
January 2004 interrupted his 2001-2004 term as municipal councilor.

The petition lacks merit.

The 1987 Constitution bars and disqualifies local elective officials from
serving more than three consecutive terms in the same post. Section 8, Article X
thereof states:

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 officials 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.

Section 43 of the Local Government Code also provides:

Sec. 43. Term of Office.

No local elective official shall serve for more than three consecutive
terms in the same position. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official
concerned was elected.

423[5]
Rollo, p. 34.
424[6]
Id. at 27-28.
 347

In Lonzanida v. Commission on Elections,425[7] the Court held that the two

conditions for the application of the disqualification must concur: 1) that the
official concerned has been elected for three consecutive terms in the same
local government post; and 2) that he has fully served three consecutive
terms.426[8] In Borja, Jr. v. Commission on Elections,427[9] the Court emphasized
that the term limit for elective officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Thus, for the
disqualification to apply, it is not enough that the official has been elected three
consecutive times; he must also have served three consecutive terms in the same
position.428[10]

While it is undisputed that respondent was elected municipal councilor for

three consecutive terms, the issue lies on whether he is deemed to have fully
served his second term in view of his assumption of office as vice-mayor of
Tuburan on January 12, 2004.

Succession in local government offices is by operation of law.429[11]

Section 44430[12] of Republic Act No. 7160, otherwise known as the Local
Government Code, provides that if a permanent vacancy occurs in the office of the
vice mayor, the highest ranking sanggunian member shall become vice mayor.
Thus:

SEC. 44. Permanent Vacancies in the Offices of the Governor,

Vice Governor, Mayor, and Vice Mayor. – (a) If a permanent vacancy
occurs in the office of the governor or mayor, the vice governor or vice
mayor concerned shall become the governor or mayor. If a permanent
vacancy occurs in the offices of the governor, vice governor, mayor or
vice mayor, the highest ranking sanggunian member or, in case of his
permanent inability, the second highest ranking sanggunian member,
shall become the governor, vice governor, mayor or vice mayor, as the
case may be. Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their
ranking as defined herein. x x x

In this case, a permanent vacancy occurred in the office of the vice mayor
due to the retirement of Vice Mayor Mendoza. Respondent, being the highest
ranking municipal councilor, succeeded him in accordance with law. It is clear
therefore that his assumption of office as vice-mayor can in no way be considered
a voluntary renunciation of his office as municipal councilor.

In Lonzanida v. Commission on Elections, the Court explained the concept

of voluntary renunciation as follows:

The second sentence of the constitutional provision under scrutiny states,

‘Voluntary renunciation of office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which he was
elected.’ The clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at the
425[7]
370 Phil. 625 (1999).
426[8]
Id. at 636.
427[9]
356 Phil. 467 (1998).
428[10]
Id. at 478.
429[11]
See Borja, Jr. v. Commission on Elections, 356 Phil. 467, 476-477 (1998).
430[12]
SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. – (a) If a permanent
vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or
mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor,
vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the
other sanggunian members according to their ranking as defined herein. x x x.
 348

same time respect the people’s choice and grant their elected official full service
of a term is evident in this provision. Voluntary renunciation of a term does not
cancel the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service.431[13]
(Emphasis added)

Thus, respondent’s assumption of office as vice-mayor in January 2004 was

an involuntary severance from his office as municipal councilor, resulting in an
interruption in the service of his 2001-2004 term. It cannot be deemed to have
been by reason of voluntary renunciation because it was by operation of law. We
quote with approval the ruling of the COMELEC that –

The legal successor is not given any option under the law on
whether to accept the vacated post or not. Section 44 of the Local
Government Code makes no exception. Only if the highest-ranking
councilor is permanently unable to succeed to the post does the law
speak of alternate succession. Under no circumstances can simple
refusal of the official concerned be considered as permanent inability
within the contemplation of law. Essentially therefore, the successor
cannot refuse to assume the office that he is mandated to occupy by
virtue of succession. He can only do so if for some reason he is
permanently unable to succeed and occupy the post vacated.

xxxx

Thus, succession by law to a vacated government office is

characteristically not voluntary since it involves the performance of a
public duty by a government official, the non-performance of which
exposes said official to possible administrative and criminal charges of
dereliction of duty and neglect in the performance of public functions.
It is therefore more compulsory and obligatory rather than voluntary. 432
[14]

THREE-TERM LIMIT FOR

BARANGAY CAPTAINS.

NICASIO BOLOS, JR. VS. THE COMMISSION ON

ELECTIONS and REY ANGELES CINCONIEGUE,
G.R. No. 184082, March 17, 2009

The facts are as follows:

For three consecutive terms, petitioner was elected to the position of

Punong Barangay of Barangay Biking, Dauis, Bohol in the Barangay
Elections held in 1994, 1997 and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of

Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol
and won. He assumed office as Municipal Councilor on July 1, 2004,
leaving his post as Punong Barangay. He served the full term of the
Sangguniang Bayan position, which was until June 30, 2007.

431[13]
Supra note 7 at 638.
432[14]
Rollo, p. 26.
 349

Thereafter, petitioner filed his Certificate of Candidacy for Punong

Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007
Barangay and Sangguniang Kabataan Elections.

Respondent Rey Angeles Cinconiegue, the incumbent Punong

Barangay and candidate for the same office, filed before the COMELEC a
petition for the disqualification of petitioner as candidate on the ground
that he had already served the three-term limit. Hence, petitioner is no
longer allowed to run for the same position in accordance with Section 8,
Article X of the Constitution and Section 43 (b) of R.A. No. 7160.

Cinconiegue contended that petitioner’s relinquishment of the

position of Punong Barangay in July 2004 was voluntary on his part, as it
could be presumed that it was his personal decision to run as municipal
councilor in the May 14, 2004 National and Local Elections. He added that
petitioner knew that if he won and assumed the position, there would be a
voluntary renunciation of his post as Punong Barangay.

In his Answer, petitioner admitted that he was elected as Punong

Barangay of Barangay Biking, Dauis, Bohol in the last three consecutive
elections of 1994, 1997 and 2002. However, he countered that in the May
14, 2004 National and Local Elections, he ran and won as Municipal
Councilor of Dauis, Bohol. By reason of his assumption of office as
Sangguniang Bayan member, his remaining term of office as Punong
Barangay, which would have ended in 2007, was left unserved. He argued
that his election and assumption of office as Sangguniang Bayan member
was by operation of law; hence, it must be considered as an involuntary
interruption in the continuity of his last term of service.

Pursuant to Section 10 of COMELEC Resolution No. 8297 dated

September 6, 2007, the petition was heard by the Provincial Election
Supervisor of Bohol. Upon completion of the proceedings, the evidence,
records of the case, and the Hearing Officer’s action on the matter were
endorsed to and received by the Commission on November 21, 2007.

The issue before the COMELEC was whether or not petitioner’s

election, assumption and discharge of the functions of the Office of
Sangguniang Bayan member can be considered as voluntary renunciation of
his office as Punong Barangay of Barangay Biking, Dauis, Bohol which
will render unbroken the continuity of his service as Punong Barangay for
the full term of office, that is, from 2004 to 2007. If it is considered a
voluntary renunciation, petitioner will be deemed to have served three
consecutive terms and shall be disqualified to run for the same position in
the October 29, 2007 elections. But if it is considered as an involuntary
renunciation, petitioner’s service is deemed to have been interrupted; hence,
he is not barred from running for another term.

In a Resolution433[1] dated March 4, 2008, the First Division of the

COMELEC ruled that petitioner’s relinquishment of the office of Punong
Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of
office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was
a voluntary renunciation of the Office of Punong Barangay. The dispositive
portion of the Resolution reads:

433[1]
Rollo, pp. 15-23.
 350

WHEREFORE, in view of the foregoing, the Commission

(First Division) GRANTS the petition. Respondent NICASIO
BOLOS, JR., having already served as Punong Barangay of
Barangay Biking, Dauis, Bohol for three consecutive terms is
hereby DISQUALIFIED from being a candidate for the same
office in the October 29, 2007 Barangay and SK Elections.
Considering that respondent had already been proclaimed, said
proclamation is hereby ANNULLED. Succession to said office
shall be governed by the provisions of Section 44 of the Local
Government Code.434[2]

Petitioner’s motion for reconsideration was denied by the COMELEC

en banc in a Resolution435[3] dated August 7, 2008.

Hence, this petition for certiorari raising this lone issue:

WHETHER OR NOT THE HONORABLE

COMMISSION ON ELECTIONS ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION AMOUNTING TO LACK
OF JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN DISQUALIFYING [PETITIONER] AS A
CANDIDATE FOR PUNONG BARANGAY IN THE
OCTOBER 29, 2007 BARANGAY AND SANGGUNIANG
KABATAAN ELECTIONS AND, SUBSEQUENTLY,
436[4]
ANNULLING HIS PROCLAMATION.

The main issue is whether or not there was voluntary renunciation of

the Office of Punong Barangay by petitioner when he assumed office as
Municipal Councilor so that he is deemed to have fully served his third term
as Punong Barangay, warranting his disqualification from running for the
same position in the October 29, 2007 Barangay and Sangguniang
Kabataan Elections.

Petitioner contends that he is qualified to run for the position of

Punong Barangay in the October 29, 2007 Barangay and Sangguniang
Kabataan Elections since he did not serve continuously three consecutive
terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he
was elected as Punong Barangay for three consecutive terms. Nonetheless,
while serving his third term as Punong Barangay, he ran as Municipal
Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office
and, consequently, left his post as Punong Barangay by operation of law. He
averred that he served the full term as member of the Sangguniang Bayan
until June 30, 2007. On October 29, 2007, he filed his Certificate of
Candidacy for Punong Barangay and won. Hence, the COMELEC gravely
abused its discretion in disqualifying him as a candidate for Punong
Barangay since he did not complete his third term by operation of law.

The argument does not persuade.

The three-term limit for elective local officials is contained in Section

8, Article X of the Constitution, which provides:

Sec. 8. The term of office of elective local officials, except

434[2]
Id. at 22.
435[3]
Id. at 24-27.
436[4]
Id. at 8.
 351

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.

David v. Commission on Elections437[5] elucidates that the Constitution

did not expressly prohibit Congress from fixing any term of office for
barangay officials, thereby leaving to the lawmakers full discretion to fix
such term in accordance with the exigencies of public service. The
discussions in the Constitutional Commission showed that the term of office
of barangay officials would be “[a]s may be determined by law,” and more
precisely, “[a]s provided for in the Local Government Code.” 438[6] Section
43(b) of the Local Government Code provides that barangay officials are
covered by the three-term limit, while Section 43(c) 439[7] thereof states that
the term of office of barangay officials shall be five (5) years. The cited
provisions read, thus:

Sec. 43. Term of Office. – x x x

(b) No local elective official shall serve for more than three
(3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.

(c) The term of barangay officials and members of the

sangguniang kabataan shall be for five (5) years, which shall
begin after the regular election of barangay officials on the
second Monday of May 1997: Provided, That the sangguniang
kabataan members who were elected in the May 1996 elections
shall serve until the next regular election of barangay officials.

Socrates v. Commission on Elections 440[8] held that the rule on the

three-term limit, embodied in the Constitution and the Local Government
437[5]
G.R. No. 127116, April 8, 1997, 271 SCRA 90, 104.
438[6]
Id. at 104-105.
MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the
office of barangay officials as provided for?
MR. DAVIDE. As may be determined by law.
MR. NOLLEDO. As provided for in the Local Government Code?
MR. DAVIDE. Yes.
xxx xxx xxx
THE PRESIDENT. Is there any other comment? Is there any objection to this proposed new section as
submitted by Commissioner Davide and accepted by the Committee?
MR. RODRIGO. Madam President, does this prohibition to serve for more than three
consecutive terms apply to barangay officials?
MR. DAVIDE. Madam President, the voting that we had on the terms of office did not include
the barangay officials because it was then the stand of the Chairman of the Committee on Local
Governments that the term of barangay officials must be determined by law. So it is now for the law to
determine whether the restriction on the number of reelections will be included in the Local
Government Code.
MR. RODRIGO. So that is up to Congress to decide.
MR. DAVIDE. Yes.
MR. RODRIGO. I just wanted that clear in the record.

439[7]
As amended by R.A. No. 8524, which took effect on March 11, 1998.
440[8]
G.R. No. 154512, November 12, 2002, 391 SCRA 457.
 352

Code, has two parts:

x x x The first part provides that an elective local

official cannot serve for more than three consecutive terms.
The clear intent is that only consecutive terms count in
determining the three-term limit rule. The second part states
that voluntary renunciation of office for any length of time
does not interrupt the continuity of service. The clear intent is
that involuntary severance from office for any length of time
interrupts continuity of service and prevents the service before
and after the interruption from being joined together to form a
continuous service or consecutive terms.

After three consecutive terms, an elective local official

cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the
same office following the end of the third consecutive term. 441[9]

In Lonzanida v. Commission on Elections,442[10] the Court stated that

the second part of the rule on the three-term limit shows the clear intent of
the framers of the Constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the same time respect
the people’s choice and grant their elected official full service of a term.
The Court held that two conditions for the application of the disqualification
must concur: (1) that the official concerned has been elected for three
consecutive terms in the same government post; and (2) that he has fully
served three consecutive terms.443[11]

In this case, it is undisputed that petitioner was elected as Punong

Barangay for three consecutive terms, satisfying the first condition for
disqualification.

What is to be determined is whether petitioner is deemed to have

voluntarily renounced his position as Punong Barangay during his third
term when he ran for and won as Sangguniang Bayan member and assumed
said office.

The Court agrees with the COMELEC that there was voluntary
renunciation by petitioner of his position as Punong Barangay.

The COMELEC correctly held:

It is our finding that Nicasio Bolos, Jr.’s relinquishment of

the office of Punong Barangay of Biking, Dauis, Bohol, as a
consequence of his assumption to office as Sangguniang Bayan
member of Dauis, Bohol, on July 1, 2004, is a voluntary
renunciation.

As conceded even by him, respondent (petitioner herein)

had already completed two consecutive terms of office when he
ran for a third term in the Barangay Elections of 2002. When he
filed his certificate of candidacy for the Office of Sangguniang
Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was
441[9]
Id. at 467.
442[10]
G.R. No. 135150, July 28, 1999, 311 SCRA 602, 613.
443[11]
Id. at 611.
 353

not deemed resigned. Nonetheless, all the acts attending his

pursuit of his election as municipal councilor point out to an
intent and readiness to give up his post as Punong Barangay once
elected to the higher elective office, for it was very unlikely that
respondent had filed his Certificate of Candidacy for the
Sangguniang Bayan post, campaigned and exhorted the
municipal electorate to vote for him as such and then after being
elected and proclaimed, return to his former position. He knew
that his election as municipal councilor would entail
abandonment of the position he held, and he intended to forego
of it. Abandonment, like resignation, is voluntary. 444[12]

Indeed, petitioner was serving his third term as Punong Barangay

when he ran for Sangguniang Bayan member and, upon winning,
assumed the position of Sangguniang Bayan member, thus, voluntarily
relinquishing his office as Punong Barangay which the Court deems as a
voluntary renunciation of said office.

Petitioner erroneously argues that when he assumed the position of

Sangguniang Bayan member, he left his post as Punong Barangay by
operation of law; hence, he did not fully serve his third term as Punong
Barangay.

The term “operation of law” is defined by the Philippine Legal

Encyclopedia445[13] as “a term describing the fact that rights may be acquired
or lost by the effect of a legal rule without any act of the person affected.”
Black's Law Dictionary also defines it as a term that “expresses the manner
in which rights, and sometimes liabilities, devolve upon a person by the
mere application to the particular transaction of the established rules of law,
without the act or cooperation of the party himself.” 446[14]

An interruption in the service of a term of office, by operation of law,

is exemplified in Montebon v. Commission on Elections.447[15] The
respondent therein, Sesinando F. Potencioso, Jr., was elected and served
three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-
2001, 2001-2004, and 2004-2007. However, during his second term, he
succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-
Mayor pursuant to Section 44 of R.A. No. 7160. 448[16] Potencioso’s
assumption of office as Vice-Mayor was considered an involuntary
severance from his office as Municipal Councilor, resulting in an
interruption in his second term of service. 449[17] The Court held that it could
not be deemed to have been by reason of voluntary renunciation because it
was by operation of law.450[18] Hence, Potencioso was qualified to run as
candidate for municipal councilor of the Municipality of Tuburan, Cebu in
the May 14, 2007 Synchronized National and Local Elections.

Further, in Borja, Jr. v. Commission on Elections, 451[19] respondent

444[12]
Rollo, pp. 18-19.
445[13]
Jose Agaton R. Sibal, copyright 1986.
446[14]
Sixth Edition, copyright 1990.
447[15]
G.R. No. 180444, April 9, 2008, 551 SCRA 50.
448[16]
SEC. 44. Permanent Vacancies in the Offices of the Governor, Mayor, and Vice Mayor.—(a) If a permanent vacancy occurs
in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor, vice-governor, mayor or vice-mayor, the highest ranking sanggunian member
or in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor
or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian
members according to their ranking as defined herein. x x x
449[17]
Supra note 15.
450[18]
Id.
451[19]
G.R. No. 133495, September 3, 1998, 295 SCRA 157.
 354

therein, Jose T. Capco, Jr., was elected as Vice-Mayor of Pateros on January

18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco
became Mayor, by operation of law, upon the death of the incumbent, Cesar
Borja. Thereafter, Capco was elected and served as Mayor for two more
terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of
Candidacy for Mayor of Pateros in the May 11, 1998 election. Capco’s
disqualification was sought on the ground that he would have already served
as Mayor for three consecutive terms by June 30, 1998; hence, he would be
ineligible to serve for another term. The Court declared that the term limit
for elective local officials must be taken to refer to the right to be elected as
well as the right to serve the same elective position. 452[20] The Court held that
Capco was qualified to run again as mayor in the next election because he
was not elected to the office of mayor in the first term but simply found
himself thrust into it by operation of law. 453[21] Neither had he served the full
term because he only continued the service, interrupted by the death, of the
deceased mayor.454[22] The vice-mayor’s assumption of the mayorship in the
event of the vacancy is more a matter of chance than of design. 455[23] Hence,
his service in that office should not be counted in the application of any term
limit.456[24]

In this case, petitioner did not fill in or succeed to a vacancy by

operation of law. He instead relinquished his office as Punong Barangay
during his third term when he won and assumed office as Sangguniang
Bayan member of Dauis, Bohol, which is deemed a voluntary renunciation
of the Office of Punong Barangay.

In fine, the COMELEC did not commit grave abuse of discretion

amounting to lack or excess of jurisdiction in issuing the Resolutions dated
March 4, 2008 and August 7, 2008, disqualifying petitioner from being a
candidate for Punong Barangay in the October 29, 2007 Barangay and
Sangguniang Kabataan Elections.

WHEREFORE, the petition is DISMISSED. The COMELEC

Resolutions dated March 4, 2008 and August 7, 2008 are hereby
AFFIRMED.

5. Section 10. No province, city,

municipality or barangay may be
created, divided, merged or
abolished, or its boundary
substantially altered, except in
accordance with the criteria
established in the LGC and subject
to the approval by a majority of the
votes cast in a plebiscite in the
political units directly affected.

Read:
1) PAREDES VS. EXECUTIVE SECRETARY, 128 SCRA 6
2) LOPEZ VS. METRO MANILA COMMISSION, 136 SCRA 633
3) TAN VS. COMELEC, 142 SCRA 727(If a province or town is created from
an existing province or town, not only the registered voters of the newly-created
452[20]
Id. at 169.
453[21]
Id. at 170.
454[22]
Id.
455[23]
Id. at 168.
456[24]
Id.
 355

province or town shall participate but also the registered voters of the province or
city where the new local government unit was taken because they are also
“directly affected”.
4) Padilla vs. COMELEC, 214 SCRA 735

RODOLFO NAVARRO VS. ERMITA, G.R. NO. 180050,

FEBRUARY 10, 2010

This is a petition for certiorari under Rule 65 of the Rules of

Court seeking to nullify Republic Act (R.A.) No. 9355, otherwise
known as An Act Creating the Province of Dinagat Islands, for
being unconstitutional.

Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene

O. Medina aver that they are taxpayers and residents of the
Province of Surigao del Norte. They have served the Province of
Surigao del Norte once as Vice- Governor and members of the
Provincial Board, respectively. They claim to have previously
filed a similar petition, which was dismissed on technical grounds.
They allege that the creation of the Dinagat Islands as a new
province, if uncorrected, perpetuates an illegal act of Congress, and
unjustly deprives the people of Surigao del Norte of a large chunk
of its territory, Internal Revenue Allocation and rich resources from
the area.

The facts are as follows:

The mother province of Surigao del Norte was created and

established under R.A. No. 2786 on June 19, 1960. The province is
composed of three main groups of islands: (1) the Mainland and
Surigao City; (2) Siargao Island and Bucas Grande; and (3)
Dinagat Island, which is composed of seven municipalities, namely,
Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose, and Tubajon.

Based on the official 2000 Census of Population and Housing

conducted by the National Statistics Office (NSO), the population
of the Province of Surigao del Norte as of May 1, 2000 was
481,416, broken down as follows:

Mainland 281,111

Surigao City 118,534

Siargao Island & Bucas Grande 93,354

Dinagat Island 106,951

Under Section 461 of R.A. No. 7610, otherwise known as

The Local Government Code, a province may be created if it has
an average annual income of not less than P20 million based on
1991 constant prices as certified by the Department of Finance,
and a population of not less than 250,000 inhabitants as
certified by the NSO, or a contiguous territory of at least 2,000
square kilometers as certified by the Lands Management
Bureau. The territory need not be contiguous if it comprises two
or more islands or is separated by a chartered city or cities,
which do not contribute to the income of the province.

On April 3, 2002, the Office of the President, through its

Deputy Executive Secretary for Legal Affairs, advised the
Sangguniang Panlalawigan of the Province of Surigao del Norte of
 356

the deficient population in the proposed Province of Dinagat

Islands.

In July 2003, the Provincial Government of Surigao del

Norte conducted a special census, with the assistance of an NSO
District Census Coordinator, in the Dinagat Islands to determine its
actual population in support of the house bill creating the Province
of Dinagat Islands. The special census yielded a population count of
371,576 inhabitants in the proposed province. The NSO, however,
did not certify the result of the special census. On July 30, 2003,
Surigao del Norte Provincial Governor Robert Lyndon S. Barbers
issued Proclamation No. 01, which declared as official, for all
purposes, the 2003 Special Census in Dinagat Islands showing a
population of 371,576.

The Bureau of Local Government Finance certified that the

average annual income of the proposed Province of Dinagat Islands
for calendar year 2002 to 2003 based on the 1991 constant prices
was P82,696,433.23. The land area of the proposed province is
802.12 square kilometers.

On August 14, 2006 and August 28, 2006, the Senate

and the House of Representatives, respectively, passed the bill
creating the Province of Dinagat Islands. It was approved and
enacted into law as R.A. No. 9355 on October 2, 2006 by
President Gloria Macapagal-Arroyo.

On December 2, 2006, a plebiscite was held in the mother

Province of Surigao del Norte to determine whether the local
government units directly affected approved of the creation of the
Province of Dinagat Islands into a distinct and independent
province comprising the municipalities of Basilisa, Cagdianao,
Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The result
of the plebiscite yielded 69,943 affirmative votes and 63,502
negative votes.

On December 3, 2006, the Plebiscite Provincial Board of

Canvassers proclaimed that the creation of Dinagat Islands into a
separate and distinct province was ratified and approved by the
majority of the votes cast in the plebiscite.

On January 26, 2007, a new set of provincial officials took

their oath of office following their appointment by President Gloria
Macapagal-Arroyo. Another set of provincial officials was elected
during the synchronized national and local elections held on May
14, 2007. On July 1, 2007, the elected provincial officials took
their oath of office; hence, the Province of Dinagat Islands began its
corporate existence.

Petitioners contended that the creation of the Province of

Dinagat Islands under R.A. No. 9355 is not valid because it failed to
comply with either the population or land area requirement
prescribed by the Local Government Code.

Petitioners prayed that R.A. No. 9355 be declared

unconstitutional, and that all subsequent appointments and elections
to the new vacant positions in the newly created Province of
Dinagat Islands be declared null and void. They also prayed for the
return of the municipalities of the Province of Dinagat Islands and
the return of the former districts to the mother Province of Surigao
del Norte.

MAIN ISSUE:
 357

WHETHER OR NOT REPUBLIC ACT NO. 9355,

CREATING THE NEW PROVINCE OF DINAGAT ISLANDS,
COMPLIED WITH THE CONSTITUTION AND STATUTORY
REQUIREMENTS UNDER SECTION 461 OF REPUBLIC ACT
NO. 7160, OTHERWISE KNOWN AS THE LOCAL
GOVERNMENT CODE OF 1991.

Petitioners contend that the proposed Province of Dinagat

Islands is not qualified to become a province because it failed to
comply with the land area or the population requirement, despite its
compliance with the income requirement. It has a total land area of
only 802.12 square kilometers, which falls short of the statutory
requirement of at least 2,000 square kilometers. Moreover,
based on the NSO 2000 Census of Population, the total population
of the proposed Province of Dinagat Islands is only 106,951,
while the statutory requirement is a population of at least
250,000 inhabitants.

Petitioners allege that in enacting R.A. No. 9355 into law,

the House of Representatives and the Senate erroneously relied on
paragraph 2 of Article 9 of the Rules and Regulations Implementing
the Local Government Code of 1991, which states that “[t]he land
area requirement shall not apply where the proposed province is
composed of one (1) or more islands.” The preceding italicized
provision contained in the Implementing Rules and Regulations is
not expressly or impliedly stated as an exemption to the land area
requirement in Section 461 of the Local Government Code.
Petitioners assert that when the Implementing Rules and
Regulations conflict with the law that they seek to implement, the
law prevails.

First, the Bureau of Local Government Finance certified that

the average annual income of the proposed Province of Dinagat
Islands for the years 2002 to 2003 based on the 1991 constant prices
was P82,696,433.25.

Second, the Lands Management Bureau certified that though

the land area of the Province of Dinagat Islands is 802.12 square
kilometers, it is composed of one or more islands; thus, it is exempt
from the required land area of 2,000 square kilometers under
paragraph 2 of Article 9 of the Rules and Regulations Implementing
the Local Government Code.

Third, in the special census conducted by the Provincial

Government of Surigao del Norte, with the assistance of a District
Census Coordinator of the NSO, the number of inhabitants in the
Province of Dinagat Islands as of 2003, or almost three years
before the enactment of R.A. No. 9355 in 2006, was 371,576, which
is more than the minimum requirement of 250,000 inhabitants.

In his Memorandum, respondent Governor Ace S. Barbers

contends that although the result of the special census conducted by
the Provincial Government of Surigao del Norte on December 2,
2003 was never certified by the NSO, it is credible since it was
conducted with the aid of a representative of the NSO. He alleged
that the lack of certification by the NSO was cured by the presence
of NSO officials, who testified during the deliberations on House
Bill No. 884 creating the Province of Dinagat Islands, and who
questioned neither the conduct of the special census nor the validity
of the result.

HELD:
 358

The petition is granted.

The constitutional provision on the creation of a province 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.”

Pursuant to the Constitution, the Local Government Code of

1991 prescribed the criteria for the creation of a province, thus:

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.

As a clarification of the territorial requirement, the Local

Government Code requires a contiguous territory of at least 2,000
square kilometers, as certified by the Lands Management Bureau.
However, the territory need not be contiguous if it comprises
two (2) or more islands or is separated by a chartered city or
cities that do not contribute to the income of the province.

If a proposed province is composed of two or more islands,

does “territory,” under Sec. 461 of the Local Government Code,
include not only the land mass above the water, but also that which
is beneath it?

To answer the question above, the discussion in Tan v.

Commission on Elections (COMELEC) is enlightening.

In Tan v. COMELEC, petitioners therein contended that

Batas Pambansa Blg. 885, creating the new Province of Negros
del Norte, was unconstitutional for it was not in accord with Art.
XI, Sec. 3 of the Constitution, and Batas Pambansa Blg. 337, the
former Local Government Code. Although what was applicable
then was the 1973 Constitution and the former Local Government
Code, the provisions pertinent to the case are substantially similar
to the provisions in this case.

Art. XI, Sec. 3 of the 1973 Constitution provides:

 359

Sec. 3. No province, city, municipality or barrio (barangay in

the 1987 Constitution) 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 in a plebiscite in the unit or
units affected.

The requisites for the creation of a province in Sec. 197 of

Batas Pambansa Blg. 337 are similar to the requisites in Sec. 461
of the Local Government Code of 1991, but the requirements for
population and territory/land area are lower now, while the income
requirement is higher. Sec. 197 of Batas Pambansa Blg. 337, the
former Local Government Code, provides:

SEC. 197.—Requisites for Creation.—A province may be

created if it has a territory of at least three thousand five hundred
square kilometers, a population of at least five hundred thousand
persons, an average estimated annual income, as certified by the
Ministry of Finance, of not less than ten million pesos for the last
three consecutive years, and its creation shall not reduce the
population and income of the mother province or provinces at the
time of said creation to less than the minimum requirements under
this section. The territory need not be contiguous if it comprises
two or more islands.

The average estimated annual income shall include the

income allotted for both the general and infrastructure funds,
exclusive of trust funds, transfers and nonrecurring income.

In Tan v. COMELEC, petitioners therein filed a case for

Prohibition for the purpose of stopping the COMELEC from
conducting the plebiscite scheduled on January 3, 1986. Since the
Court was in recess, it was unable to consider the petition on time.
Petitioners filed a supplemental pleading, averring that the
plebiscite sought to be restrained by them was held as scheduled,
but there were still serious issues raised in the case affecting the
legality, constitutionality and validity of such exercise which should
properly be passed upon and resolved by the Court.

At issue in Tan was the land area of the new Province of

Negros del Norte, and the validity of the plebiscite, which did not
include voters of the parent Province of Negros Occidental, but only
those living within the territory of the new Province of Negros del
Norte.

The Court held that the plebiscite should have included the
people living in the area of the proposed new province and those
living in the parent province. However, the Court did not direct the
conduct of a new plebiscite, because the factual and legal basis for
the creation of the new province did not exist as it failed to satisfy
the land area requirement; hence, Batas Pambansa Blg. 885,
creating the new Province of Negros del Norte, was declared
unconstitutional. The Court found that the land area of the new
province was only about 2,856 square kilometers, which was below
the statutory requirement then of 3,500 square kilometers.

Hence, the Court holds that the provision in Sec. 2, Art. 9 of

the IRR stating that “[t]he land area requirement shall not apply
where the proposed province is composed of one (1) or more
islands” is null and void.

It is undisputed that R.A. No. 9355 complied with the income

requirement specified by the Local Government Code. What is
 360

disputed is its compliance with the land area or population

requirement.

R.A. No. 9355 expressly states that the Province of Dinagat

Islands “contains an approximate land area of eighty thousand two
hundred twelve hectares (80,212 has.) or 802.12 sq. km., more or
less, including Hibuson Island and approximately forty-seven (47)
islets x x x.” R.A. No. 9355, therefore, failed to comply with the
land area requirement of 2,000 square kilometers.

The Province of Dinagat Islands also failed to comply with

the population requirement of not less than 250,000 inhabitants as
certified by the NSO. Based on the 2000 Census of Population
conducted by the NSO, the population of the Province of Dinagat
Islands as of May 1, 2000 was only 106,951.

Although the Provincial Government of Surigao del Norte

conducted a special census of population in Dinagat Islands in
2003, which yielded a population count of 371,000, the result was
not certified by the NSO as required by the Local Government
Code. Moreover, respondents failed to prove that with the
population count of 371,000, the population of the original unit
(mother Province of Surigao del Norte) would not be reduced to
less than the minimum requirement prescribed by law at the time of
the creation of the new province.

Respondents contended that the lack of certification by the

NSO was cured by the presence of the officials of the NSO during
the deliberations on the house bill creating the Province of Dinagat
Islands, since they did not object to the result of the special census
conducted by the Provincial Government of Surigao del Norte.

The contention of respondents does not persuade.

Although the NSO representative to the Committee on Local

Government deliberations dated November 24, 2005 did not
object to the result of the provincial government’s special census,
which was conducted with the assistance of an NSO district census
coordinator, it was agreed by the participants that the said result was
not certified by the NSO, which is the requirement of the Local
Government Code. Moreover, the NSO representative, Statistician
II Ma. Solita C. Vergara, stated that based on their computation, the
population requirement of 250,000 inhabitants would be attained by
the Province of Dinagat Islands by the year 2065. The computation
was based on the growth rate of the population, excluding
migration.

To reiterate, when the Dinagat Islands was proclaimed a new

province on December 3, 2006, it had an official population of
only 106,951 based on the NSO 2000 Census of Population. Less
than a year after the proclamation of the new province, the NSO
conducted the 2007 Census of Population. The NSO certified that as
of August 1, 2007, Dinagat Islands had a total population of only
120,813, which was still below the minimum requirement of
250,000 inhabitants.

In fine, R.A. No. 9355 failed to comply with either the

territorial or the population requirement for the creation of the
Province of Dinagat Islands.

The Constitution clearly mandates that the creation of local

government units must follow the criteria established in the Local
Government Code. Any derogation of or deviation from the criteria
 361

prescribed in the Local Government Code violates Sec. 10, Art. X

of the Constitution.

6. Sections 11-14
Read:
1) CENIZA VS. COMELEC, 95 SCRA 763
2) Differentiate a highly urbanized city from a component city (See BP 337,
Sections 162-168)

7. Sections 15-21
Is there a Cordillera Autonomous Region?
a. Read: Exec. Order No. 220
b. Ordillo vs. Comelec, 192 SCRA 100 (If only one Province or only one city of
the Cordilleras will vote in favor of autonomy, such is not enough to constitute a
Region. There must at least be two (2) provinces or one province and the City of
Baguio for form a Region)

PART XI
ARTICLE XI - ACCOUNTABILITY OF PUBLIC
OFFICERS

1. Sections 1. Public Office is a public trust.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,

October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

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

Senate Resolution No. 455 (Senate Res. No. 455), 457[4] “directing an inquiry in aid
of legislation on the anomalous losses incurred by the Philippines Overseas
Telecommunications Corporation (POTC), Philippine Communications Satellite
Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC)
due to the alleged improprieties in their operations by their respective Board of
Directors.”

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

Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of
the herein petitioners, inviting him to be one of the resource persons in the public
meeting jointly conducted by the Committee on Government Corporations and
Public Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455. 458[6]

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

commitment.459[7] At the same time, he invoked Section 4(b) of E.O. No.
1.

I S S U E:
457[4]
Annex “E” of the Petition in G.R. No. 174318.
458[6]
Annex “F” of the Petition in G.R. No. 174318.
459[7]
Annex “G” of the Petition in G.R. No. 174318.
 362

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

whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution.
Assuming that it has not been repealed, is it not inconsistent with Section 1, Art.
XI which states that public office is a public trust?

The petition has no merit.

Section 4(b) of E.O. No.1 limits the power of legislative inquiry by

exempting all PCGG members or staff from testifying in any judicial, legislative
or administrative proceeding, thus:

No member or staff of the Commission shall be

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

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

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

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

invested with certain powers and charged with certain duties pertinent to
sovereignty, the powers so delegated to the officer are held in trust for the people
and are to be exercised in behalf of the government or of all citizens who may
need the intervention of the officers. Such trust extends to all matters within
the range of duties pertaining to the office. In other words, public officers are
but the servants of the people, and not their rulers. 460[24]

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

principle of public accountability. It places the PCGG members and staff
beyond the reach of courts, Congress and other administrative bodies. Instead of
encouraging public accountability, the same provision only institutionalizes
irresponsibility and non-accountability. In Presidential Commission on Good
Government v. Peña,461[25] Justice Florentino P. Feliciano characterized as “obiter”
the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of
E.O. No. 1, a civil case for damages filed against the PCGG and its
Commissioners. He eloquently opined:

The above underscored portions are, it is respectfully submitted,

clearly obiter. It is important to make clear that the Court is not
here interpreting, much less upholding as valid and constitutional,
the literal terms of Section 4 (a), (b) of Executive Order No.1. If
Section 4 (a) were given its literal import as immunizing the PCGG or
any member thereof from civil liability “for anything done or omitted
in the discharge of the task contemplated by this Order,” the
constitutionality of Section 4 (a) would, in my submission, be open to
most serious doubt. For so viewed, Section 4 (a) would institutionalize
the irresponsibility and non-accountability of members and staff of the
460[24]
De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.
461[25]
No. L-77663, April 12, 1988, 159 SCRA 558.
 363

PCGG, a notion that is clearly repugnant to both the 1973 and 1987
Constitution and a privileged status not claimed by any other official
of the Republic under the 1987 Constitution. x x x.

It would seem constitutionally offensive to suppose that a member

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

Chavez v. Sandiganbayan462[26] reiterates the same view. Indeed, Section

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

2. Sections 12--18

a. Impeachment, officers of the government who are impeachable, grounds,

limitations for its exercise, procedure, etc. . .
ROMULO, et al vs. YNIGUEZ, et al, 141 SCRA 263

“Culpable violation of the constitution, treason, bribery, graft and corruption,

other high crimes, or betrayal of public trust”

Judgment in cases of impeachment shall not extend further than removal

from office and disqualification to hold any other office under the Republic of the
Philippines but shall nevertheless be liable to prosecution, trial and punishment
according to law.

Read:
FRANCISCO VS. SPEAKER JOSE DE VENECIA, ET
AL, 415 SCRA 44, November 10, 2003

When is an impeachment complaint deemed to

be a bar to the filing of another complaint
within a 1-year period?

A verified impeachment complaint bars the filing of another complaint

against an impeachable official within a period of 1 year after the same was
received by the House of Representatives and referred by the Speaker to the
appropriate committee for its study and recommendation. It is deemed initiated
under Art. XI, Section 3 [5] after the referral to the Committee by the Speaker. To
“initiate” refers to the filing of the impeachment complaint COUPLED WITH
CONGRESS TAKING INITIAL ACTION OF SAID COMPLAINT.”

a-1. Degree of loyalty, etc. of government employee.

Read:

Lim-Arce vs. Arce, 205 SCRA 21

c. The SANDIGANBAYAN AND TANODBAYAN DECREES

Read:
1) PD's 1486, 1847, 1606, 1607 and 1630
462[26]
193 SCRA 282 (1991).
 364

2) Exec. Order 244

3) NUNEZ VS. SANDIGANBAYAN, 111 SCRA 433
4) MANGUBAT VS. SANDIGANBAYAN, 147 SCRA 478
5) GABISON VS. DE LOS ANGELES, 151 SCRA 61
6) ZALDEVAR VS. RAUL GONZALES, April 27, 1988 and the
Resolution of the Motion for Reconsideration dated 19 May 1988
6) BAGASO VS. SANDIGANBAYAN, 155 SCRA 154
7) DE JESUS VS. PEOPLE, 120 SCRA 760
8) QUIMPO VS. TANODBAYAN, December 2, 1986, 146 SCRA
9) INTING VS. TANODBAYAN, 97 SCRA 494

b-1 Who prosecutes public officials? Exception

Read:

1. Corpuz vs. Tanodbayan, 149 SCRA 281

c. Disqualification of public officer

Read:
1) MINOR VS. AGBU, April 10, 1987
2) MAHARLIKA PUBLISHING VS. TAGLE, 142 SCRA 553

Power of the Ombudsman to suspend or

dismiss public officials. Not only to
recommend but to directly dismiss or suspend
public officials.

REMIA F. BONCALON vs. OMBUDSMAN, G.R. No.

171812, December 24, 2008.

QUISUMBING, J.
The antecedent facts are as follows:
On November 25, 1997, Loida C. Arabelo, 463[5] the State Auditor II of Bago
City, Negros Occidental, conducted an audit on the cash accounts of Boncalon, a
Cashier IV at Bago City Treasurer’s Office. The audit revealed a cash shortage of
P1,023,829.56.464[6] The state auditor also discovered, upon verification from the
463[5]
Arabello in some parts of the records.
464[6]
Rollo, pp. 52-53.
xxxx
(1) The City Cashier IV, Remia F. Boncalon, was short of P1,023,829.56 on her cash accountability at the time of the examination
due to falsification, undocumented and overstated disbursements, undeposited collection and in connivance with Renato L. Diy, Manager
and Ernesto Sa-onoy, Cashier, both of PNB-RB, Bago City Branch, in violation of Articles 171, 217 and 222 of the Revised Penal Code;

The cash shortage was arrived at as follows:

Balance of Accountability as of
November 25, 1997 per cashbook - P 47,106.14

ADD: Debits to Accountability

Fictitious entry in the official
Cashbook for deposit under
Fictitious Report of Daily
Collections and Deposits
No. 101-97101836 dated 10/31/97 P 1,019,535.21

Fictitious entry of payroll No. 14432

in the Report of Cash Disbursement
No. 101-9706994 dated 8/18/97 and
in the official cashbook of the accountable
Officer P 2,550.00
Overstatement of total of Report of
Cash Disbursement No. 101-9706994
dated 5/30/97 P 1,644.02

Amount of collection for the months of

June and August 1997 not deposited P 100.33
 365

depository bank, that the entry in Boncalon’s cashbook pertaining to the deposit of
P1,019,535.21 on October 31, 1997 was false. Deposits totaling said amount were
made only on November 25, 1997 and December 22, 1997, in the amounts of
P200,000.00 and P819,535.21, respectively.

In view of the audit findings, Boncalon was administratively charged with

dishonesty before the Office of the Ombudsman (Visayas). The case was
docketed as OMB-VIS-ADM-99-0488.

Boncalon denied accountability for any cash shortage and averred that she
was informed by the state auditor of the alleged shortage only on October 1, 1998,
or after she had gone on a commuted leave of absence from April 13, 1998 to July
15, 1998, wherein she was cleared of money and property accountability and paid
the corresponding money value of said leave.465[7] She also contended that had the
state auditor examined her safe, she would have found the bundles of money worth
P819,535.21, which she had overlooked.466[8]

Graft Investigation Officer (GIO) I Alvin Butch E. Cañares recommended

the dismissal of the case since the questioned amounts were already accounted for.
He also said that the erroneous entry of deposit in Boncalon’s cashbook can only
be considered as an administrative lapse, subject only to the admonition of the
erring public officer.

Upon review, Director Virginia Palanca-Santiago, Office of the Ombudsman

(Visayas), reversed the recommendation of GIO I Cañares. She ruled that the
untimely deposit of the questioned amount only means that Boncalon was in
possession of the money and had made use of it. Further, her act of falsifying an
entry of deposit in her cashbook, which is an official document, signifies want of
integrity on her part as she had the disposition to betray, cheat or defraud the
government.467[9] Boncalon sought reconsideration, but to no avail. Thus, she
appealed to the Court of Appeals.

In the Decision dated February 27, 2004, the Court of Appeals found Boncalon
guilty of dishonesty under Section 23, Rule XIV of the Omnibus Rules on Civil
Service. Citing the Cash Examination Manual, the Court of Appeals stressed that
entries in the cashbook are the direct and personal responsibility of every cash
accountable officer. And should they be duly permitted to be assisted by
subordinates in case of heavy volume of work, the work of their subordinates still
remains under their close and strict supervision. The Court of Appeals also
emphasized that when Boncalon certified under oath that she “produced all her cash,
treasury, warrants, checks, money orders, cash items, paid vouchers, unused
accountable forms, etc. to the Auditor/Examiner on November 25, 1997,” she cannot
later claim that she simply failed to notice the bundles of money in her safe.468[10] The
fallo of the decision reads,
WHEREFORE, the instant petition is hereby DENIED.
Accordingly, the finding of the Office of the Ombudsman holding
petitioner guilty of dishonesty and meting the penalty of dismissal
P 1,023,829.56

Total Audited Accountability as of Nov. 25, 1997 P 1,070,935.70

Less: Credits to Accountability

Cash and Valid cash items counted
at the time of the examination 47,106.14

SHORTAGE P 1,023,829.56
(Emphasis ours.)
465[7]
CA rollo, pp. 23-24.
466[8]
Id. at 26.
467[9]
Id. at 18-21.
468[10]
Rollo, pp. 32-34.
 366

from government service with forfeiture of all benefits and perpetual

disqualification of holding public office is hereby AFFIRMED.
SO ORDERED.469[11]

Aggrieved, Boncalon filed this petition contending that:

I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
UPHOLDING PETITIONER’S DISMISSAL FROM THE SERVICE
WITH FORFEITURE OF ALL BENEFITS AND PERPETUAL
DISQUALIFICATION TO HOLD PUBLIC OFFICE ALTHOUGH
THE OMBUDSMAN HAS NO POWER TO DISMISS PUBLIC
OFFICIALS AND EMPLOYEES;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
UPHOLDING PETITIONER’S DISMISSAL FROM THE SERVICE,
DESPITE THE FACT THAT SHE HAS NOT INCURRED ANY
SHORTAGE; THAT SHE HAS BEEN CLEARED OF MONEY AND
PROPERTY ACCOUNTABILITY; THAT SHE HAS ACCOUNTED
THE FUNDS IN HER CUSTODY AND NO DAMAGE HAS BEEN
CAUSED TO THE CITY OF BAGO; and
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
UPHOLDING PETITIONER’S DISMISSAL FROM THE SERVICE
DESPITE THE ABSENCE OF PROOF BUT RELIANCE MERELY
ON PRESUMPTIONS, CONJECTURES AND INFERENCES THAT
ARE MISTAKEN.470[12]

Essentially, the issues for resolution are: (1) Did the Court of Appeals err in
upholding Boncalon’s dismissal from service on the ground of dishonesty? and (2)
Is the Ombudsman empowered to dismiss public officials and employees in
administrative cases?

Petitioner contends that the alleged shortage was already accounted for in
the November 25, 1997 and December 22, 1997 bank deposits. She explains that
the late deposits of the said amounts were due to her failure to notice the same in
her safe, as they were in bundles. She also argues that the posting of entries in her
cashbook was already delegated to her subordinates due to her multifarious duties
and functions as Cashier IV. As such, the entry of deposit dated October 31, 1997
may only have been an unintended mistake of her subordinates, considering that it
was the last day of the month and holiday season followed.

She further avers that for liability to attach, notice and demand must be
made upon her to afford her due process, but to the contrary, the state auditor
informed her only on October 1, 1998 or more than ten months after the audit, and
after she had gone on an approved leave of absence wherein she was cleared of
money and property accountability and paid the money value of said leave.
Invoking Madarang v. Sandiganbayan,471[13] she finally contends that mere
absence of funds is not sufficient proof of conversion, nor is her mere failure to
turn over the funds at any given time sufficient to make a prima facie case, for
469[11]
Id. at 36.
470[12]
Id. at 17.
471[13]
G.R. No. 112314, March 28, 2001, 355 SCRA 525, 535.
 367

conversion must be affirmatively proved, either by direct evidence or by the

production of facts from which conversion necessarily follows.

The Office of the Solicitor General (OSG), for respondent Office of the
Ombudsman (Visayas), maintains that the Court of Appeals did not err in
upholding Boncalon’s dismissal because the cash shortage and false entry of
deposit remained undisputed. Even assuming that it was her subordinates who posted
the said entry in her cashbook, still, she should have taken the necessary precautions to
verify the truthfulness of each entry therein. But she did not. Thus, her explanation,
that she overlooked the P819,535.21 inside her safe as they were in bundles, was
purely an alibi, too flimsy to accept.

After a judicious evaluation of the submissions and pieces of evidence of both

parties, we are in agreement that petitioner is, indeed, guilty of dishonesty.

First, this Court finds no basis for Boncalon’s protestations that she was
deprived of due process of law merely because the state auditor belatedly notified
her of the alleged cash shortage. In administrative proceedings, such as in the
case at bar, procedural due process simply means the opportunity to explain one’s
side or the opportunity to seek a reconsideration of the action or ruling
complained of.472[14] Here, we take note that Boncalon was given every
opportunity to explain her side in her letters to the state auditor dated October
5, 1998,473[15] October 19, 1998474[16] and December 10, 1998.475[17] She was
further heard in person during investigation by the graft investigating officer, as
well as by the Director of the Office of the Ombudsman (Visayas), and she was
able to participate in all the stages of the administrative proceedings. Despite all
these, she could not justify the averred cash shortage as of November 25, 1997.

The Court acknowledges that indeed, as claimed by petitioner, when auditor

Arabelo made her demand on October 2, 1998 upon the petitioner to restitute
P1,023,829.56476[18] the same had already been settled and as of the said date the
discrepancies found in connection with the November 25, 1997 audit had already
been ironed out. Considering that the demand was made at the time when the
amounts had already been produced, then the prima facie evidence that missing
472[14]
Casimiro v. Tandog, G.R. No. 146137, June 8, 2005, 459 SCRA 624, 633.
473[15]
CA rollo, p. 34.
xxxx
Dear Miss Arabelo:
xxxx
Considering the big amount involved and the lapse of time… I respectfully request that I be given a time of at least three (3) weeks within
(sic) to go over my records to determine the basis of such findings.
xxxx
474[16]
Id. at 35.
xxxx
1) Re – undeposited amount One Million Nineteen Thousand Five Hundred Thirty Five & 21/100 (P1,019,535.21)…
Of the amount of P1,019,535.21, the P200,000.00 was already deposited on November 25, 1997 when the examination was
conducted per deposit slip copy hereto attached. The balance of P819,535.21 was deposited on December 22, 1997 per deposit slip copies
hereto attached. The small delay in affecting the deposit was due to the volume of work in the office and in the preparation of the
necessary papers relative hereto. Be that as it is, this [deficiency] has already been long adjusted. (Emphasis supplied.)
xxxx
475[17]
Id. at 36.
xxxx
1) How the shortage of P1,023,829.56 occurred.
The shortage of P1,023,829.56 is not, strictly speaking, a shortage because the amounts, like the P200,000 was already deposited with
the bank at the time of the cash examination which you failed to consider in the audit; the amount of P819,535.21 was already bundled and
prepared ready for deposit;…
These differences were brought about because of the multifarious duties of a cashier and lack of properly trained personnel. The
Office of the cashier handling several funds among them the General fund (includes Infra and Nalgu) Trust Fund and Special Educational Fund
has only nine (9) personnel.
2) [Why the] deposits of P200,000.00 and P819,535.21 made on November 25, 1997 and December 22, 1997 respectively, were not
presented to you (examiner) during the cash count last November 25, 1997.
During the cash examination, on your demand, all my cash, cash items and other papers related to such examination, were presented to you.
If you have missed some of them in your cash count I could not be blamed for them because my attention was never called by you for any
discrepancy. From November 25, 1997, the date of the examination, it was only on October 1, 1998 that you formally notified me of the
discrepancies you found in my accounts, a lapse of more than ten (10) months. Since a cash examination is to be done contin[u]ously and
completely, after a lapse of a reasonable time of more than five (5) months without any report of a discrepancy in my accounts as Cashier, I was
confident my accountabilities were okay. That is why your letter of October 1, 1998 was a complete surprise. (Emphasis and underscoring
supplied.)
xxxx
476 [18]
P200,000 was deposited on November 25, 1997, as evidenced by the deposit slip; P819,535.21 was deposited on December 22, 1997, as
evidenced by the deposit slip; P4,194.52 was refunded and deposited under O.R. No. 0527601 as evidenced by the O.R. and deposit slip;
P100.03 which represents errors in recording of P0.30, P100 and P0.03 were already taken up and recorded as entries. (CA rollo, pp. 35 & 55).
 368

funds were put to personal use, which presumption Article 217 of the Revised
Penal Code supplies in connection with the felony of malversation, did not arise.
But the absence of the said prima facie evidence does not necessarily equate to an
absence of administrative liability on the part of petitioner.

It is undisputed that: 1) Petitioner had the duty to deposit in the bank the
amount of P1,019,535.21 by October 31, 1997; 2) Such amount was not
deposited on October 31, 1997; 3) The entry in petitioner’s cashbook of a deposit
on October 31, 1997 in the amount of P1,019,535.21 is false; 4) The amount was
deposited in two tranches – P200,000 on November 25, 1997 and P819,535.21 on
December 22, 1997. These circumstances starkly speak of an irregularity that
calls for an explanation on the part of the responsible officer.

Petitioner wants to pass off the matter as an innocent error on her part. Her
explanation however fails to convince us that the subject entry was an honest mistake
or innocuous error. Her claim that the cash of P819,535.21 was in the safe when the
audit was conducted on November 25, 1997, is contradicted by her certification that
she produced all her cash items, which amounted to only P47,106.14 in total, before
the state auditor on the said date. Also, her claim of having overlooked the bundles
of money that were just sitting in her safe is far too incredible to believe. Evidence,
to be worthy of credit, must not only proceed from the mouth of a credible witness
but must be credible in itself. Stated otherwise, it must be natural, reasonable and
probable as to make it easy to believe.477[19] There is no test of the truth of human
testimony except its conformity to human knowledge, observation, and experience,
and that whatever is repugnant to these belongs to the miraculous and is outside of
judicial cognizance.478[20] In the instant case, the subject “overlooked” sum would
comprise, at the very least, eight bundles of P1,000 peso bills plus other notes and
coins. This stash is simply too bulky and noticeable to be overlooked, especially in
the face of an ongoing audit and cash examination. It is more reasonable to believe
the certification which states that the cash items at the time of the audit amounted to
only P47,106.14.

Petitioner, by making or allowing the making of the subject false entry of

deposit, made it appear that the money was already out of her possession and that
it was already in the bank, when the truth was that the money was not yet in the
bank and was actually unaccounted for. The fact that undated deposit slip/s were
used to support the entry of deposit as of October 31, 1997 in the cashbook is
already irregular. The undisputed and totally unexplained odd fact that the total
amount was split into two deposits that were separately made weeks after the
entire sum was supposed to have been deposited on a single day -- October 31,
1997 -- underscores the irregularity. Such acts when connected together paint a
clear picture of deliberateness, not innocent error. The same manifests bad faith
or, at the very least, each of the said acts constitutes gross negligence amounting
to bad faith. The circumstance that the entry of deposit on October 31, 1997 was
never corrected to reflect the fact of non-deposit of the amount on that date and
the fact of the corresponding deposits of P200,000 on November 25, 1997 and
P819,535.21 on December 22, 1997 further underscores the conclusion that the
matter was not an innocuous error.

Dishonesty is defined as “the concealment or distortion of truth in a

matter of fact relevant to one’s office or connected with the performance of his
duty.”479[21] The unsatisfactorily explained false entry of deposit in the amount of
P1,019,535.21 on October 31, 1997 clearly constitutes dishonesty.
477 [19]
Safeguard Security Agency, Inc. v. Tongco, G.R. No. 165733, December 14, 2006, 511 SCRA 67, 84; People v. Villaflores, G.R. Nos.
135063-64, December 5, 2001, 371 SCRA 429, 442.
478 [20]
Safeguard Security Agency, Inc. v. Tongco, id.; People v. Escalante, G.R. No. 106633, December 1, 1994, 238 SCRA 554, 563.
479 [21]
Alfonso v. Office of the President, G.R. No. 150091, April 2, 2007, 520 SCRA 64, 87.
 369

Second, her justification that she did not prepare or post the said entry of
deposit deserves scant consideration because it appears to be a mere feeble
attempt to shift the blame to her subordinates. As explicitly provided in the Cash
Examination Manual, entries in her cashbook are her personal and direct
responsibility even in instances when she can delegate the task to a subordinate
due to a heavy volume of work. Moreover, it is highly unacceptable for a public
officer like petitioner to attribute the lack of diligence in work to the day of the
month it was performed, i.e., last day of the month and the fact that holiday season
followed. Due diligence at work should be observed at all times.

Third, her liability cannot be mitigated, much less can she be exonerated,
because no pecuniary damage was allegedly incurred by the government on
account of the late deposits of the public money in the depository bank. As a
cash-accountable officer, her duty is to immediately deposit the various funds she
received with the authorized government depositories. This duty is clearly set out
in Commission on Audit Circular No. 91-368480[22] which states:
Sec. 465. Deposit of Collections. – The treasurer/cashier shall
deposit intact all his collections as well as all collections turned
over to him by the collectors/tellers with the authorized depository
bank daily or not later than the next banking day. He shall
summarize the collections and deposits accomplishing the
Cashier/Treasurer’s Report of Daily Collections and Deposits
(CTRDCD), Prov. Form No. 213(a) in three copies. The original and
duplicate, together with the original and duplicate copies of the
DSCAF’s and the deposit slips and the duplicates of official receipts,
shall be submitted daily to the accountant. The third copies of the
CTRDCD and the DSCAFs shall be retained by the treasurer/cashier.
In the case of municipalities where travel time to the depository
bank is more than one day, deposit of collections shall be made at least
once a week, or as soon as the collections reach P10,000.

Clearly, petitioner is not supposed to keep funds in her custody for longer
than a week. A failure to make a timely turnover of the cash received by her
constitutes, not just gross negligence in the performance of her duty, but gross
dishonesty, if not malversation.481[23]

Lastly, Madarang cannot be considered as precedent in the case at bar

because the former is a criminal case for malversation while the instant case is an
administrative case for dishonesty.

It is not amiss to point out that public servants ought to exhibit at all times
the highest sense of honesty and integrity, for no less than the Constitution
mandates that a public office is a public trust. Public officers and employees are
accountable to the people, and must serve with utmost responsibility, integrity,
loyalty, and efficiency, as well as act with patriotism and justice, and lead modest
lives.482[24] These constitutionally-enshrined principles, oft-repeated in our
decisions, are not mere rhetorical flourishes or idealistic sentiments, but they are
working standards in accord with the State’s policy of promoting a high standard
of ethics and utmost responsibility in the public service.

480 [22]
INSTITUTING A GOVERNMENT ACCOUNTING AND AUDITING MANUAL AND PRESCRIBING ITS USE, which took effect on
January 1, 1992.
481 [23]
See Concerned Citizen v. Gabral, Jr., A.M. No. P-05-2098, December 15, 2005, 478 SCRA 13, 22.
482[24]
Section 1, Article XI, 1987 Philippine Constitution.
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
 370

Apropos the second issue, petitioner contends in her defense that the power
of the Ombudsman concerning penalty after an investigation of public officials or
employees is merely recommendatory. Thus, it cannot directly impose sanctions
against them. On the other hand, the OSG maintains that the prevailing doctrine,
as enunciated by us in Ledesma v. Court of Appeals,483[25] is that the power of the
Ombudsman with regard to imposing sanctions is not merely advisory but
mandatory.

On this point, we find that the stance of the OSG is correct. We have
repeatedly held in a catena of precedents, 484[26] aside from Ledesma, that the
Ombudsman has the power to directly impose the penalty of removal, suspension,
demotion, fine, censure, or prosecution of an erring public official, other than a
member of Congress and the Judiciary, within the exercise of its administrative
disciplinary authority as provided for in Section 13(3), 485[27] Article XI of the 1987
Constitution, and Section 15(3)486[28] of Republic Act No. 6770.487[29] The clear and
precise discussion of Justice Carpio on the matter in Office of the Ombudsman v.
Court of Appeals488[30] is worth repeating here, to wit:
While Section 15(3) of RA 6770 states that the Ombudsman has
the power to “recommend x x x removal, suspension, demotion x x x”
of government officials and employees, the same Section 15(3) also
states that the Ombudsman in the alternative may “enforce its
disciplinary authority as provided in Section 21” of RA 6770. The
word “or” in Section 15(3) before the phrase “enforce its disciplinary
authority as provided in Section 21” grants the Ombudsman this
alternative power.

Section 21489[31] of RA 6770 vests in the Ombudsman “disciplinary

authority over all elective and appointive officials of the
Government,” except impeachable officers, members of Congress, and
the Judiciary. And under Section 25 of RA 6770, the Ombudsman may
impose in administrative proceedings the “penalty ranging from
suspension without pay for one year to dismissal with forfeiture of
benefits or a fine ranging from five thousand pesos (P5,000.00) to twice
the amount malversed, illegally taken or lost, or both at the discretion of
the Ombudsman x x x.”

Clearly, under Rep. Act No. 6770 the Ombudsman has the power to directly
impose administrative penalty on public officials or employees.
483[25]
G.R. No. 161629, July 29, 2005, 465 SCRA 437.
484 [26]
Barillo v. Gervasio, G.R. No. 155088, August 31, 2006, 500 SCRA 561; Office of the Ombudsman v. Madriaga, G.R. No. 164316,
September 27, 2006, 503 SCRA 631; Office of the Ombudsman v. Court of Appeals, G.R. No. 168079, July 17, 2007, 527 SCRA 798; Balbastro
v. Junio, G.R. No. 154678, July 17, 2007, 527 SCRA 680; Office of the Ombudsman v. Santiago, G.R. No. 161098, September 13, 2007, 533
SCRA 305.
485[27]
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxxx
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis ours.)
xxxx
486 [28]
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:
xxxx
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or
discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance
therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause
to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or
who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis and
underscoring ours.)
xxxx
487 [29]
AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN,
AND FOR OTHER PURPOSES, approved on November 17, 1989.
488[30]
Supra note 26, at 807-808.
489 [31]
SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. ― The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or
over Members of Congress, and the Judiciary.
 371

WHEREFORE, the Decision dated February 27, 2004 and Resolution

dated February 14, 2006 of the Court of Appeals in CA-G.R. SP No. 71911,
finding petitioner guilty of DISHONESTY and dismissing her from government
service, with forfeiture of retirement benefits and perpetual disqualification to
hold public office, are hereby AFFIRMED.

Read:

Buenaseda vs. Flavier, September 21, 1993

PART XI

ARTICLE XIII - SOCIAL JUSTICE AND HUMAN

RIGHTS

1. Secs. 1-19

2. Adjudicatory Power of the Commission on Human Rights

Read:

1. Carino vs. CHR, December 2, 1991

2. EPZA vs. CHR, April 14, 1992

Read also:

1) SUMULONG VS. GUERRERO, G.R. No. L-48685, Sept. 30, 1987

2) DIZON VS. GEN. EDUARDO, G.R. No. 59118, March 3, 1988

3) Exec. Order No. 163, May 5, 1987, Declaring the effectivity of the creation
of the Commission on Human Rights as provided for under the 1987 Constitution.

4) Memorandum Order No. 20, July 4, 1986

PART XIII
ARTICLE XIV - EDUCATION, SCIENCE, etc..

1. Secs. 1-19

a. Read: RA 6655-The Free Secondary Education Act of 1988

Section 5 [2] Academic freedom shall be enjoyed in all

institutions of higher learning.

b. What is academic freedom?

VERY IMPORTANT: (2007 BAR QUESTION)

Under the 1973 Constitution, “Academic freedom shall by enjoyed BY ALL

institutions of higher learning” while under the 1987 Philippine Constitution,
“Academic freedom shall be enjoyed IN ALL institutions of higher learning.” In
short, before, ONLY INSTITUTIONS OF HIGHER LEARNING ENJOY
ACADEMIC FREEDOM UNDER THE 1973 CONSTITUTION WHILE
UNDER THE 1987 CONSTITUTION, ACADEMIC FREEDOM IS ALSO
 372

ENJOYED BY THE TEACHERS AND PROFESSORS AS WELL AS

STUDENTS, ASIDE FROM THE SCHOOL.

Academic freedom; due process in disciplinary

actions involving students; right to cross-
examine is not part of due process in
investigations involving students.

DE LA SALLE UNIVERSITY VS. COURT OF

APPEALS, HON.WILFREDO D. REYES, in his
capacity as Presiding Judge of Branch 36, Regional
Trial Court of Manila, THE COMMISSION ON
HIGHER EDUCATION, THE DEPARTMENT OF
EDUCATION CULTURE AND SPORTS, ALVIN
AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD
REVERENTE and ROBERTO VALDES, JR., G.R. No.
127980, December 19, 2007

REYES, R.T., J.:

THE FACTS:

PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard

Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who
were expelled by the De La Salle University (DLSU) and College of Saint Benilde
(CSB)490[1] Joint Discipline Board because of their involvement in an offensive
action causing injuries to petitioner James Yap and three other student members of
Domino Lux Fraternity.

On March 29, 1995, James Yap was eating his dinner alone in Manang’s
Restaurant near La Salle, when he overheard two men bad-mouthing and
apparently angry at Domino Lux. He ignored the comments of the two. When he
arrived at his boarding house, he mentioned the remarks to his two other brods
while watching television. These two brods had earlier finished eating their dinner
at Manang’s. Then, the three, together with four other persons went back to
Manang’s and confronted the two who were still in the restaurant. By admission
of respondent Bungubung in his testimony, one of the two was a member of the
Tau Gamma Phi Fraternity. There was no rumble or physical violence then.

After this incident, a meeting was conducted between the two heads of the
fraternity through the intercession of the Student Council. The Tau Gamma Phi
Fraternity was asking for an apology. “Kailangan ng apology” in the words of
respondent Aguilar. But no apology was made.

On March 25, 1995, Ten minutes before his next class at 6:00 p.m., James
Yap went out of the campus using the Engineering Gate to buy candies across Taft
Avenue. As he was about to re-cross Taft Avenue, he heard heavy footsteps at his
back. Eight to ten guys were running towards him. He panicked. He did not
know what to do. Then, respondent Bungubung punched him in the head with
something heavy in his hands – “parang knuckles.” Respondents Reverente and
Lee were behind Yap, punching him. Respondents Bungubung and Valdes who
were in front of him, were also punching him. As he was lying on the street,
respondent Aguilar kicked him. People shouted; guards arrived; and the group of
490[1]
College of Saint Benilde is an educational institution which is part of the De La Salle System.
 373

attackers left. Yap could not recognize the other members of the group who
attacked him. With respect to respondent Papio, Mr. Yap said “hindi ko nakita
ang mukha niya, hindi ko nakita sumuntok siya.” What Mr. Yap saw was a long
haired guy also running with the group.

The mauling incidents were a result of a fraternity war. The victims,

namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael
Perez, are members of the “Domino Lux Fraternity,” while the alleged assailants,
private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and
Roberto Valdes, Jr. are members of “Tau Gamma Phi Fraternity,” a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint 491[7] with
the Discipline Board of DLSU charging private respondents with “direct assault.”
Similar complaints492[8] were also filed by Dennis Pascual and Ericson Cano
against Alvin Lee and private respondents Valdes and Reverente. Thus, cases
entitled “De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-
BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr.
(BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-
MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)” were docketed as
Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private
respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of
the complaints and requiring them to answer. Private respondents filed their
respective answers.493[9]

Said notices issued by De La Salle Discipline Board uniformly stated as

follows:

Please be informed that a joint and expanded Discipline Board

had been constituted to hear and deliberate the charge against you for
violation of CHED Order No. 4 arising from the written complaints of
James Yap, Dennis C. Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled

on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and
your witnesses to give testimony and present evidence in your behalf.
You may be assisted by a lawyer when you give your testimony or
those of your witnesses.

On or before April 18, 1995, you are further directed to provide

the Board, through the Discipline Office, with a list of your witnesses
as well as the sworn statement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure

to submit the list of witnesses and the sworn statement of their
proposed testimony will be considered a waiver on your part to
present evidence and as an admission of the principal act complained
of.

For your strict compliance.494[13]

491[7]
Id. at 127.
492[8]
Id. at 128-129.
493[9]
Id. at 130-133.
494[13]
Id. at 134.
 374

During the proceedings before the Board on April 19 and 28, 1995, private
respondents interposed the common defense of alibi.

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a

Resolution495[18] finding private respondents guilty. They were meted the supreme
penalty of automatic expulsion,496[19] pursuant to CHED Order No. 4.497[20] The
dispositive part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds

respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL
BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250)
and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of
having violated CHED Order No. 4 and thereby orders their automatic
expulsion.

In the case of respondent MALVIN A. PAPIO (AB-

MGT/9251227), the Board acquits him of the charge.

SO ORDERED.498[21]

Private respondents separately moved for reconsideration 499[22] before the

Office of the Senior Vice-President for Internal Operations of DLSU. The
motions were all denied in a Letter-Resolution 500[23] dated June 1, 1995.

On June 5, 1995, private respondent Aguilar filed with the RTC, Manila,
against petitioners a petition for certiorari and injunction under Rule 65 of the
Rules of Court with prayer for temporary restraining order (TRO) and/or writ of
preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned
to respondent Judge of Branch 36. The petition essentially sought to annul the
May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1,
1995 Letter-Resolution of the Office of the Senior Vice-President for Internal
Affairs.

The following day, June 6, 1995, respondent Judge issued a TRO 501[24]
directing DLSU, its subordinates, agents, representatives and/or other persons
acting for and in its behalf to refrain and desist from implementing Resolution
dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately
desist from barring the enrollment of Aguilar for the second term of school year
(SY) 1995.

On June 7, 1995, the CHED directed DLSU to furnish it with copies of the
case records of Discipline Case No. 9495-3-25121, 502[28] in view of the authority
granted to it under Section 77(c) of the Manual of Regulations for Private Schools
(MRPS).
495[18]
Id. at 139-150.
496[19]
Manual of Regulations for Private Schools (1992), Sec. 77(c) provides that expulsion is “an extreme penalty of an erring pupil or
student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior
approval of the Secretary. The penalty may be imposed for acts or offenses constituting gross misconduct, dishonesty, hazing,
carrying deadly weapons, immorality, selling and/or possession of prohibited drugs such as marijuana, drug dependency, drunkenness,
hooliganism, vandalism, and other serious school offenses such as assaulting a pupil or student or school personnel, instigating or
leading illegal strikes or similar concerned activities resulting in the stoppage of classes, preventing or threatening any pupil or student
or school personnel from entering the school premises or attending classes or discharging their duties, forging or tampering with
school records or school forms, and securing or using forged school records, forms and documents.”
497[20]
Rollo, pp. 151-153.
498[21]
Id. at 150.
499[22]
Id. at 1284-1304.
500[23]
Id. at 172-178.
501[24]
Id. at 180.
502[28]
Id. at 208.
 375

On the other hand, private respondents Bungubung and Reverente, and later,
Valdes, filed petitions-in-intervention503[29] in Civil Case No. 95-74122.
Respondent Judge also issued corresponding temporary restraining orders to
compel petitioner DLSU to admit said private respondents.

On June 19, 1995, petitioner Sales filed a motion to dismiss 504[30] in behalf of
all petitioners, except James Yap. On June 20, 1995, petitioners filed a
supplemental motion to dismiss505[31] the petitions-in-intervention.

On September 20, 1995, respondent Judge issued an Order 506[32] denying

petitioners’ (respondents there) motion to dismiss and its supplement, and granted
private respondents’ (petitioners there) prayer for a writ of preliminary injunction.

Despite the said order, private respondent Aguilar was refused enrollment by
petitioner DLSU when he attempted to enroll on September 22, 1995 for the
second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with
respondent Judge an urgent motion to cite petitioners (respondents there) in
contempt of court.507[34] Aguilar also prayed that petitioners be compelled to enroll
him at DLSU in accordance with respondent Judge’s Order dated September 20,
1995. On September 25, 1995, respondent Judge issued 508[35] a writ of preliminary
injunction, ordering d\De La Salle not to implement its decision expelling private
respondents. On October 16, 1995, petitioner DLSU filed with the CA a petition
for certiorari509[37] (CA-G.R. SP No. 38719) with prayer for a TRO and/or writ of
preliminary injunction to enjoin the enforcement of respondent Judge’s September
20, 1995 Order and writ of preliminary injunction dated September 25, 1995.

On April 12, 1996, the CA granted petitioners’ prayer for preliminary

injunction.

On May 14, 1996, the CHED issued its questioned Resolution No. 181-96,
summarily disapproving the penalty of expulsion for all private respondents. As
for Aguilar, he was to be reinstated, while other private respondents were to be
excluded.510[38] The Resolution states:

RESOLUTION 181-96

RESOLVED THAT THE REQUEST OF THE DE LA SALLE

UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE
APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON
MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R.
VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE,
AS IT IS HEREBY IS, DISAPPROVED.

RESOLVED FURTHER, THAT THE COMMISSION DIRECT

THE DLSU TO IMMEDIATELY EFFECT THE REINSTATEMENT
OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF
MR. JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR.,
503[29]
Id. at 210-236.
504[30]
Id. at 237-246.
505[31]
Id. at 247-275.
506[32]
Id. at 1116-1124.
507[34]
Id. at 1563-1571.
508[35]
Id. at 114-115.
509[37]
Id. at 336-392.
510[38]
Manual of Regulations for Private Schools (1992), Sec. 77(b) provides that exclusion is “a penalty in which the school is
allowed to exclude or drop the name of the erring pupil or student from the school rolls for being undesirable, and transfer credentials
immediately issued.”
 376

(sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE

FROM EXPULSION TO EXCLUSION.511[39]

Despite the directive of CHED, petitioner DLSU again prevented private

respondent Aguilar from enrolling and/or attending his classes, prompting his
lawyer to write several demand letters 512[40] to petitioner DLSU. In view of the
refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a
letter dated June 26, 1996 addressed to petitioner Quebengco requesting that
private respondent Aguilar be allowed to continue attending his classes pending
the resolution of its motion for reconsideration of Resolution No. 181-96.
However, petitioner Quebengco refused to do so, prompting CHED to promulgate
an Order dated September 23, 1996 which states:

Acting on the above-mentioned request of Mr. Aguilar through

counsel enjoining De La Salle University (DLSU) to comply with
CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al.
v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the
urgent request as meritorious, there being no other plain and speedy
remedy available, considering the set deadline for enrollment this
current TRIMESTER, and in order to prevent further prejudice to his
rights as a student of the institution, DLSU, through the proper school
authorities, is hereby directed to allow Mr. Alvin Aguilar to
provisionally enroll, pending the Commission’s Resolution of the
instant Motion for Reconsideration filed by DLSU.

Notwithstanding the said directive, petitioner DLSU, through petitioner

Quebengco, still refused to allow private respondent Aguilar to enroll. Thus,
private respondent Aguilar’s counsel wrote another demand letter to petitioner
DLSU.513[42]

Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED

Resolution No. 181-96, filed a motion to dismiss 514[43] in the CA, arguing that
CHED Resolution No. 181-96 rendered the CA case moot and academic.

On July 30, 1996, the CA issued its questioned resolution granting the
motion to dismiss of private respondent Aguilar.

On October 28, 1996, petitioners requested transfer of case records to the

Department of Education, Culture and Sports (DECS) from the CHED. 515[46]
Petitioners claimed that it is the DECS, not CHED, which has jurisdiction over
expulsion cases, thus, necessitating the transfer of the case records of Discipline
Case No. 9495-3-25121 to the DECS.

On November 4, 1996, in view of the dismissal of the petition for certiorari

in CA-G.R. SP No. 38719 and the automatic lifting of the writ of preliminary
injunction, private respondent Aguilar filed an urgent motion to reiterate writ of
preliminary injunction dated September 25, 1995 before respondent RTC Judge of
Manila.516[47]

511[39]
Rollo, pp. 125-126.
512[40]
Id. at 1599-1606.
513[42]
Id. at 1605-1606.
514[43]
Id. at 435-438.
515[46]
Id. at 518-522.
516[47]
Id. at 523-530.
 377

On January 7, 1997, respondent Judge issued its questioned order granting

private respondent Aguilar’s urgent motion to reiterate preliminary injunction.
The pertinent portion of the order reads:

In light of the foregoing, petitioner Aguilar’s urgent motion to

reiterate writ of preliminary injunction is hereby granted, and
respondents’ motion to dismiss is denied.

The writ of preliminary injunction dated September 25, 1995 is

declared to be in force and effect.

Hence, this case.

I S S U E S:

Can petitioner DLSU invoke its right to academic freedom in support of

its decision to expel the private respondents?

H E L D:

Since De La Salle University is an institution of higher learning, it

enjoys academic freedom which includes the right to determine whom to
admit as its students.

Section 5(2), Article XIV of the Constitution guaranties all institutions of

higher learning academic freedom. This institutional academic freedom includes
the right of the school or college to decide for itself, its aims and objectives, and
how best to attain them free from outside coercion or interference save possibly
when the overriding public interest calls for some restraint. 517[74] According to
present jurisprudence, academic freedom encompasses the independence of an
academic institution to determine for itself (1) who may teach, (2) what may be
taught, (3) how it shall teach, and (4) who may be admitted to study. 518[75]

While La Salle is entitled to invoke academic freedom in its actions

against its students, the penalty of expulsion imposed by DLSU on private
respondents is disproportionate to their misdeed.

It is true that schools have the power to instill discipline in their students as
subsumed in their academic freedom and that “the establishment of rules
governing university-student relations, particularly those pertaining to student
discipline, may be regarded as vital, not merely to the smooth and efficient
operation of the institution, but to its very survival.” 519[94] This power, however,
does not give them the untrammeled discretion to impose a penalty which is not
commensurate with the gravity of the misdeed. If the concept of proportionality
between the offense committed and the sanction imposed is not followed, an
element of arbitrariness intrudes. That would give rise to a due process
question.520[95]

517[74]
Miriam College Foundation, Inc. v. Court of Appeals, 401 Phil. 431, 455-456 (2000), citing Tangonan v. Paño, G.R. No. L-
45157, June 27, 1985, 137 SCRA 245, 256-257.
518[75]
Regino v. Pangasinan Colleges of Science and Technology, G.R. No. 156109, November 18, 2004, 443 SCRA 56. The “four
essential freedoms of a university” were formulated by Mr. Justice Felix Frankfurter of the United States Supreme Court in his
concurring opinion in the leading case of Sweezy v. New Hampshire, 354 US 234, 1 L. Ed. 2d 1311, 77 S. Ct. 1203.
519[94]
See note 87, at 663-664.
520[95]
Malabanan v. Ramento, 214 Phil. 319, 330 (1984).
 378

We agree with respondent CHED that under the circumstances, the penalty
of expulsion is grossly disproportionate to the gravity of the acts committed by
private respondents Bungubung, Reverente, and Valdes, Jr. Each of the two
mauling incidents lasted only for few seconds and the victims did not suffer any
serious injury. Disciplinary measures especially where they involve suspension,
dismissal or expulsion, cut significantly into the future of a student. They attach
to him for life and become a mortgage of his future, hardly redeemable in certain
cases. Officials of colleges and universities must be anxious to protect it,
conscious of the fact that, appropriately construed, a disciplinary action should be
treated as an educational tool rather than a punitive measure. 521[96]
Accordingly, petitioner DLSU may exclude or drop the names of the said
private respondents from its rolls for being undesirable, and transfer credentials
immediately issued, not EXPEL.

Read:

1.THE UNIVERSITY OF THE PHILIPPINES VS. COURT OF APPEALS,

February 9, 1993

1-a. THE UNIVERSITY OF THE PHILIPPINES VS. HON. RUBEN

AYSON, August 17, 1989

1-c. UP BOARD OF REGENTS VS. CA, August 31, 1999

Academic Freedom includes the power of a University to REVOKE a

degree or honor it has conferred to a student after it was found out that the
student’s graduation was obtained through fraud.

Academic freedom is given a wide sphere of authority. If an institution

of higher learning can decide on who can and cannot study in it, it certainly
can also determine on whom it can confer the honor and distinction of being
its graduates.

Academic Freedom—

It is an atmosphere in which there prevail the four essential freedom of a

university to determine for itself on academic grounds
a. who may teach,
b. what may be taught,
c. how it shall be taught, and
d. who may be admitted to study"' (Emphasis supplied; citing Sinco,
Philippine Political Law, 491, (1962) and the concurring opinion of
Justice Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]).

1-b) GARCIA VS. FACULTY ADMISSION, 68 SCRA 277

"What is academic freedom? Briefly put, it is the freedom of professionally

qualified persons to inquire, discover, publish and teach the truth as they see
it in the field of their competence. It is subject to no control or authority
except the control or authority of the rational methods by which truths or
conclusions are sought and established in these disciplines."

"The personal aspect of freedom consists in the right of each university

teacher recognized and effectively guaranteed by society to seek and express the
521[96]
Rollo, p. 515.
 379

truth as he personally sees it, both in his academic work and in his capacity as a
private citizen. Thus the status of the individual university teacher is at least as
important, in considering academic freedom, as the status of the institutions to
which they belong and through which they disseminate their learning."'

2) MONTEMAYOR VS. ARANETA UNIVERSITY FOUNDATION

3) VILLAR VS. TIP, April 17, 1985
4) MALABANAN VS. RAMENTO,129 SCRA 359
5) BELENA VS. PMI
6) ALCUAZ VS. PSBA, May 2, 1988
6-a) ALCUAZ VS. PSBA, September 29, 1989
(Resolution on the Motion for Reconsideration) Read also the dissenting opinion
of Justice Sarmiento
7) TONGONAN VS. PANO, 137 SCRA 246
8) ATENEO VS. CA, 145 SCRA 100
9) GUZMAN VS. NU, 142 SCRA 706
10) ANGELES VS. SISON, 112 SCRA 26
11. Tan vs. CA, 199 SCRA 212
12. Colegio del Sto. Nino vs. NLRC, 197 SCRA 611
13. Dean Reyes vs. CA,
14. UP vs. CA, February 9, 1993
15. Ateneo vs. Judge Capulong, May 27, 1993

PART XIV
ARTICLE XVI - GENERAL PROVISIONS

1. Sections 1-12

Exec. Order No. 264

a. Consent is either Express or Implied

b. Express
1. general law
aa. C.A. 327
bb. Act 3083, Sec. 1
cc. Art. 2180 par. 6, New Civil Code (R.A. 386)
dd. PD 1807, January 16, 1981

2. Special law
Read: MERRITT VS. GOVERNMENT, 34 Phil. 311

c. Implied

1. When the government institutes a suit;

State immunity from suit; when government

officers initiate a suit against a private party, it
descends to the level of a private individual
susceptible to counterclaims

REPUBLIC OF THE PHILIPPINES VS.

SANDIGANBAYAN and ROBERTO BENEDICTO, 484
SCRA 119
 380

Garcia, J.

When the State through the Presidential Commission on Good Government

(PCGG) filed a complaint against a private individual before the Sandiganbayan
and thereafter, enters into a compromise agreement , it cannot later on invoke
immunity from suit.

Where the State itself is no less than the plaintiff in the main case, immunity
from suit cannot be invoked because when a state, through its duly authorized
officers takes the initiative in a suit against a private party, it thereby descends to
the level of a private individual and thus opens itself to whatever counterclaims or
defenses the latter may have against it. When the State enters into contract,
through its officers or agents, in furtherance of a legitimate aim or purpose and
pursuant to a constitutional legislative authority, whereby mutual and reciprocal
benefits accrue and rights and obligations arise therefrom, the State may be sued
even without its express consent, precisely because by entering into a contract the
sovereign descends to the level of the citizen. Its consent to be sued is implied
from the very act of entering into such contract, breach of which on its part gives
the corresponding right of the other party to the agreement.

2. When the government engages in business or enters into a contract; and

3. Read:

aa. MINISTERIO VS. CFI of Cebu, 40 SCRA (The government cannot

validly invoke State immunity in connection with a suit filed by individuals whose
lands were used by the government for roads to collect just compensation of their
property. To do so would be to allow the State to cause injustice to its citizen and
enrich itself to the prejudice of its people.
bb. U.S. VS. RUIZ, 136 SCRA

Immunity from suit of local governments.

THE MUNICIPALITY OF HAGONOY, BULACAN VS.

HON. SIMEON DUMDUM, JR., in his capacity as
Presiding Judge of RTC Branch 7, Cebu City et al., GR
No. 168289, March 22, 2010

PERALTA, J.:

This is a Joint Petition under Rule 45 of the Rules

of Court brought by the Municipality of Hagonoy, Bulacan
and its former chief executive, Mayor Felix V. Ople in his
official and personal capacity, from the January 31, 2005
Decision and the May 23, 2005 Resolution of the Court of
Appeals in CA-G.R. SP No. 81888. The assailed decision
affirmed the October 20, 2003 Order issued by the
Regional Trial Court of Cebu City, Branch 7 in Civil Case
No. CEB-28587 denying petitioners’ motion to dismiss and
motion to discharge/dissolve the writ of preliminary
attachment previously issued in the case. The assailed
resolution denied reconsideration.

The case stems from a Complaint filed by herein

private respondent Emily Rose Go Ko Lim Chao against
 381

herein petitioners, the Municipality of Hagonoy, Bulacan

and its chief executive, Felix V. Ople (Ople) for collection
of a sum of money and damages. It was alleged that
sometime in the middle of the year 2000, respondent,
doing business as KD Surplus and as such engaged in
buying and selling surplus trucks, heavy equipment,
machinery, spare parts and related supplies, was contacted
by petitioner Ople. Respondent had entered into an
agreement with petitioner municipality through Ople for
the delivery of motor vehicles, which supposedly were
needed to carry out certain developmental undertakings in
the municipality. Respondent claimed that because of
Ople’s earnest representation that funds had already been
allocated for the project, she agreed to deliver from her
principal place of business in Cebu City twenty-one motor
vehicles whose value totaled P5,820,000.00. To prove this,
she attached to the complaint copies of the bills of lading
showing that the items were consigned, delivered to and
received by petitioner municipality on different dates.
However, despite having made several deliveries, Ople
allegedly did not heed respondent’s claim for payment. As
of the filing of the complaint, the total obligation of
petitioner had already totaled P10,026,060.13 exclusive of
penalties and damages. Thus, respondent prayed for full
payment of the said amount, with interest at not less than
2% per month, plus P500,000.00 as damages for business
losses, P500,000.00 as exemplary damages, attorney’s fees
of P100,000.00 and the costs of the suit.

On February 13, 2003, the trial court issued an Order

granting respondent’s prayer for a writ of preliminary
attachment conditioned upon the posting of a bond
equivalent to the amount of the claim. On March 20, 2003,
the trial court issued the Writ of Preliminary Attachment
directing the sheriff “to attach the estate, real and personal
properties” of petitioners.

Instead of addressing private respondent’s

allegations, petitioners filed a Motion to Dismiss on the
ground that the claim on which the action had been
brought was unenforceable under the statute of frauds,
pointing out that there was no written contract or document
that would evince the supposed agreement they entered
into with respondent. They averred that contracts of this
nature, before being undertaken by the municipality, would
ordinarily be subject to several preconditions such as a
public bidding and prior approval of the municipal council
which, in this case, did not obtain. From this, petitioners
impress upon us the notion that no contract was ever
entered into by the local government with respondent. To
address the claim that respondent had made the deliveries
under the agreement, they advanced that the bills of lading
attached to the complaint were hardly probative, inasmuch
as these documents had been accomplished and handled
exclusively by respondent herself as well as by her
employees and agents.
 382

Petitioners also filed a Motion to Dissolve and/or

Discharge the Writ of Preliminary Attachment already
Issued, [1] invoking immunity of the state from suit, [2]
nenforceability of the contract, and [3] failure to
substantiate the allegation of fraud.

On October 20, 2003, the trial court issued an Order

denying the two motions. Petitioners moved for
reconsideration, but they were denied in an Order dated
December 29, 2003.

Believing that the trial court had committed grave

abuse of discretion in issuing the two orders, petitioners
elevated the matter to the Court of Appeals via a petition
for certiorari under Rule 65.

On January 31, 2005, following assessment of the

parties’ arguments, the Court of Appeals, finding no merit
in the petition, upheld private respondent’s claim and
affirmed the trial court’s order. Petitioners moved for
reconsideration, but the same was likewise denied for lack
of merit and for being a mere scrap of paper for having
been filed by an unauthorized counsel. Hence, this
petition.

HELD:

Petitioners, advocating a negative stance on this

issue, posit that as a municipal corporation, the
Municipality of Hagonoy is immune from suit, and that its
properties are by law exempt from execution and
garnishment. Hence, they submit that not only was there
an error committed by the trial court in denying their
motion to dissolve the writ of preliminary attachment; they
also advance that it should not have been issued in the first
place. Nevertheless, they believe that respondent has not
been able to substantiate her allegations of fraud necessary
for the issuance of the writ.

Private respondent, for her part, counters that,

contrary to petitioners’ claim, she has amply discussed the
basis for the issuance of the writ of preliminary attachment
in her affidavit; and that petitioners’ claim of immunity
from suit is negated by Section 22 of the Local
Government Code, which vests municipal corporations
with the power to sue and be sued. Further, she contends
that the arguments offered by petitioners against the writ of
preliminary attachment clearly touch on matters that when
ruled upon in the hearing for the motion to discharge,
would amount to a trial of the case on the merits.

The general rule spelled out in Section 3, Article XVI

of the Constitution is that the state and its political
subdivisions may not be sued without their consent.
Otherwise put, they are open to suit but only when they
 383

consent to it. Consent is implied when the government

enters into a business contract, as it then descends to the
level of the other contracting party; or it may be embodied
in a general or special law such as that found in Book I,
Title I, Chapter 2, Section 22 of the Local Government
Code of 1991, which vests local government units with
certain corporate powers —one of them is the power to sue
and be sued.

Be that as it may, a difference lies between suability

and liability. As held in City of Caloocan v. Allarde, where
the suability of the state is conceded and by which liability
is ascertained judicially, the state is at liberty to determine
for itself whether to satisfy the judgment or not. Execution
may not issue upon such judgment, because statutes
waiving non-suability do not authorize the seizure of
property to satisfy judgments recovered from the action.
These statutes only convey an implication that the
legislature will recognize such judgment as final and make
provisions for its full satisfaction. Thus, where consent to
be sued is given by general or special law, the implication
thereof is limited only to the resultant verdict on the action
before execution of the judgment.

Traders Royal Bank v. Intermediate Appellate Court,

citing Commissioner of Public Highways v. San Diego, is
instructive on this point. In that case which involved a
suit on a contract entered into by an entity supervised by
the Office of the President, the Court held that while the
said entity opened itself to suit by entering into the subject
contract with a private entity; still, the trial court was in
error in ordering the garnishment of its funds, which were
public in nature and, hence, beyond the reach of
garnishment and attachment proceedings. Accordingly, the
Court ordered that the writ of preliminary attachment
issued in that case be lifted, and that the parties be allowed
to prove their respective claims at the trial on the merits.
There, the Court highlighted the reason for the rule, to wit:

The universal rule that where the State gives its

consent to be sued by private parties either by general or
special law, it may limit claimant’s action “only up to the
completion of proceedings anterior to the stage of
execution” and that the power of the Courts ends when the
judgment is rendered, since government funds and
properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on obvious
considerations of public policy. Disbursements of public
funds must be covered by the corresponding appropriations
as required by law. The functions and public services
rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their
legitimate and specific objects. x x x
 384

With this in mind, the Court holds that the writ of

preliminary attachment must be dissolved and, indeed, it
must not have been issued in the very first place. While
there is merit in private respondent’s position that she, by
affidavit, was able to substantiate the allegation of fraud in
the same way that the fraud attributable to petitioners was
sufficiently alleged in the complaint and, hence, the
issuance of the writ would have been justified. Still, the
writ of attachment in this case would only prove to be
useless and unnecessary under the premises, since the
property of the municipality may not, in the event that
respondent’s claim is validated, be subjected to writs of
execution and garnishment — unless, of course, there has
been a corresponding appropriation provided by law.

WHEREFORE, the Petition is GRANTED IN

PART. The January 31, 2005 Decision of the Court of
Appeals in CA-G.R. SP No. 81888 is AFFIRMED insofar
as it affirmed the October 20, 2003 Decision of the
Regional Trial Court of Cebu City, Branch 7 denying
petitioners’ motion to dismiss in Civil Case No. CEB-
28587. The assailed decision is REVERSED insofar as it
affirmed the said trial court’s denial of petitioners’ motion
to discharge the writ of preliminary attachment issued in
that case. Accordingly, the August 4, 2003 Writ of
Preliminary Attachment issued in Civil Case No. CEB-
28587 is ordered lifted.

cc. TORIO VS. FONTANILLA, 85 SCRA 599 [Local government units

are liable for the death or injuries as a result of the collapse of the stage built by
the town for the town fiesta since holding of a town fiesta is in the exercise of its
business or proprietary function because there is no law that requires towns to
hold an annual town fiesta.]
dd. COMMISSIONER VS. SAN DIEGO, 31 SCRA 616
ee. USA vs. JUDGE QUINTO, et al., February 26, 1990 and the cases
cited therein
ff. Republic of the Philippines vs. Judge Sandoval, March 19, 1993
gg. Wylie vs. Rarang, 209 SCRA 357
hh. Veteans vs. CA, 214 SCRA 286

Immunity from suit; effect of a void contract

with the government; unjust enrichment

DEPARTMENT OF HEALTH VS. C.V. CANCHELA, et

al., 475 SCRA 218

Carpio-Morales, J.

Facts:

The DOH entered into three owner –consultant agreements with the
private respondents covering infrastructure projects for the Baguio General
Hospital and Medical Center (BGHMC), the Batangas Regional Hospital
and the Corazon L. Montelibano Memorial regional Hospital in Bacolod
City.
 385

The agreements for the three (3) projects are almost identical. This
requires the private respondents to prepare: detailed architectural and
engineering design plans; technical specifications and detailed estimates of
cost of construction of the hospital, including the preparation of bid
documents and requirements; and construction supervision until completion
of hand-over and issuance of final certificate.

While the Agreements were witnessed by the respective Chief

Accountants of the hospitals and were duly approved by the Department of
Health, the former did not issue corresponding certificates of availability of
funds to cover the professional or consultancy fees.

The DOH through is authorized representative, wrote separate letters

to the respective chiefs of hospitals confirming the acceptance of private
respondents’ complete Contract or Bid Documents for each project and
RECOMMENDED THE PAYMENT OF 7.5% OF THE PROJECT
ALLOCATION TO PRIVATE RESPONDENTS AS CONSULTANCY
FEES.

During the construction of the projects, various deficiencies in the

performance of the agreed scope of private respondents’ work were
allegedly discovered which were not communicated to the private
respondents. Due to such alleged deficiencies, petitioner withheld payment
of the consultancy fees due to private respondent. Neither did petitioner
return the documents, plans, specifications and estimates submitted by
private respondents.

Considering the refusal of the DOH to pay said fees despite repeated
demands, the private respondents submitted the dispute to the Construction
Industry Arbitration Commission (CIAC).

After the presentation of evidence by both parties, the Arbitrator

issued his decision dated March 30, 1999 sentencing the DOH to pay the
private respondents to pay P3,492,713.00 for services performed and
completed for and accepted by DOH. The said amount shall earn interest at
6% per annum from the date of the award until the decision becomes final.
Thereafter, the principal and the interest accrued as of such time shall earn
interest at 12% per annum.

The DOH filed a Petition for Review under Rule 43 before the Court
of Appeals but was dismissed for being filed out of time. As such, on motion
of the private respondents, the Arbitrator issued a Writ of Execution .

Issue:

Whether or not the CIAC has jurisdiction to entertain the suit

considering that the Agreements, being to promote the heath and well-being
of the citizens, is in furtherance of the state’s sovereign and governmental
power and therefore, IMMUNE FROM SUIT.

Held:

In their Memorandum before the Supreme Court, the DOH, for the
first time, raised the nullity of the three (3) agreements from the very
 386

beginning for failure to include therein a certification of availability of

funds which is required under existing laws, particularly the Auditing Code
of the Philippines, PD 1445. As such, the fees of the private respondents
shall not be based on the project fund allocation but on the basis of
reasonable value or on the principle of quantum meruit.

While the agreement is indeed void ab initio for violation of existing

laws, the DOH is liable to pay the private respondents their consultancy
services based on quantum merit to be determined by the Commission on
Audit.

The invocation of immunity from suit is without merit. This is so

because the government has already received and accepted the benefits
rendered. To refuse payment as a result of the state’s immunity from suit
would be to allow the government to unjustly enrich itself at the expense of
another. (Citing Eslao vs. COA, 195 SCRA 730)

4. Tests of Suability for incorporated government

Read:

aa. RAYO VS. CFI OF BULACAN, 110 SCRA 456

Even if the National Power Corporation is a government office performing

governmental functions [to provide electricity for the entire country and
ordinarily, it should have been immune from suit] it can be sued because its
charter mandates that it can sue and be sued.

bb. ANGAT RIVER IRRIGATION SYSTEM VS. CIR, 102 Phil. 789

5. Tests of Suability for an unincorporated govt. agency government

agency

Read:
bb. NATIONAL AIRPORTS CORP. VS. TEODORO, 91 Phil
203
cc. bb. SANTIAGO VS. REPUBLIC, 87 SCRA 294 (Failure of
the government to fulfill its obligation in connection with a
lot donated by a private individual to the government
entitles the former to file a case for the revocation of the
said donation. The State cannot raise the defense of State
Immunity since it should not be allowed to profit from its
own illegal act of not complying with its obligation.
cc. PNB VS. PABALAN, 83 SCRA595
dd. REPUBLIC VS. PURISIMA, 78 SCRA 470
ee. MOBIL PHIL. VS. CUSTOMS ARRASTRE SERVICE, 185 SCRA
1120
ff. BUREAU OF PRINTING VS. BUREAU OF PRINTING
EMPLOYEES ASSOCIATION, 1 SCRA 340
hh. METRAN VS. PAREDES, 79 Phil. 819
ii. SANTOS VS. SANTOS, 92 Phil. 281
jj. MALAYAN INSURANCE VS. SMITH BELL, Nov. 17, 1980
kk. SYQUIA VS. ALMEDA LOPEZ, 84 Phil. 31
ll. LIM VS. BROWNELL, JR., 107 Phil. 344
mm. CARABAO INC. VS. SPC, 35 SCRA 224
 387

nn. U.S.A. vs. RUIZ, 136 SCRA 487

“jure imperii”---is the same as governmental function; and
“jus gestiones”---is the same as business or proprietary function.

LOIDA Q. SHAUF and JACOB SHAUF vs.

HON. COURT OF APPEALS, DON E. DETWILER
and ANTHONY, G.R. No. 90314 November 27, 1990

Petitioner Loida Q. Shauf, a Filipino by origin and married to an

American who is a member of the United States Air Force, applied for the
vacant position of Guidance Counselor, GS 1710-9, in the Base Education
Office at Clark Air Base, for which she is eminently qualified. As found by
the trial court, she received a Master of Arts degree from the University of
Sto. Tomas, Manila, in 1971 and has completed 34 semester hours in
psychology-guidance and 25 quarter hours in human behavioral science; she
has also completed all course work in human behavior and counseling
psychology for a doctoral degree; she is a civil service eligible; and, more
importantly, she had functioned as a Guidance Counselor at the Clark Air
Base at the GS 1710-9 level for approximately four years at the time she
applied for the same position in 1976.

Contrary to her expectations, petitioner Loida Q. Shauf was never

appointed to the position occupied by Mrs. Abalateo whose appointment
was extended indefinitely by private respondent Detwiler.

Feeling aggrieved by what she considered a shabby treatment accorded

her, petitioner Loida Q. Shauf wrote the U.S. Civil Service Commission
questioning the qualifications of Edward Isakson. Thereafter, said
commission sent a communication addressed to private respondent Detwiler,
10 finding Edward Isakson not qualified to the position of Guidance
Counselor, GS 1710-9, and requesting that action be taken to remove him
from the position and that efforts be made to place him in a position for
which he qualifies. Petitioner Loida Q. Shauf avers that said
recommendation was ignored by private respondent Detwiler and that
Isakson continued to occupy said position of guidance counselor.

Petitioner Loida Q. Shauf likewise wrote the Base Commander of

Clark Air Base requesting a hearing on her complaint for discrimination.
Consequently, a hearing was held on March 29, 1978 before the U.S.
Department of Air Force in Clark Air Base.

Before the Department of Air Force could render a decision, petitioner

Loida Q. Shauf filed a complaint for damages, dated April 27, 1978, against
private respondents Don Detwiler and Anthony Persi before the Regional
Trial Court, Branch LVI at Angeles City, docketed as Civil Case No. 2783,
for the alleged discriminatory acts of herein private respondents in
maliciously denying her application for the GS 1710-9 position.

Private respondents, as defendants in Civil Case No. 2783, filed a

motion to dismiss on the ground that as officers of the United States Armed
Forces performing official functions in accordance with the powers vested in
them under the Philippine-American Military Bases Agreement, they are
immune from suit. The motion to dismiss was denied by the trial court. A
motion for reconsideration was likewise denied.
 388

Petitioners aver that private respondents are being sued in their private
capacity for discriminatory acts performed beyond their authority, hence the
instant action is not a suit against the United States Government which
would require its consent.

Private respondents, on the other hand, claim that in filing the case,
petitioners sought a judicial review by a Philippine court of the official
actuations of respondents as officials of a military unit of the U.S. Air Force
stationed at Clark Air Base. The acts complained of were done by
respondents while administering the civil service laws of the United States.
The acts sued upon being a governmental activity of respondents, the
complaint is barred by the immunity of the United States, as a foreign
sovereign, from suit without its consent and by the immunity of the officials
of the United States Armed Forces for acts committed in the performance of
their official functions pursuant to the grant to the United States Armed
Forces of rights, power and authority within the bases under the Military
Bases Agreement. It is further contended that the rule allowing suits against
public officers and employees for unauthorized acts, torts and criminal acts
is a rule of domestic law, not of international law. It applies to cases
involving the relations between private suitors and their government or state,
not the relations between one government and another from which springs
the doctrine of immunity of a foreign sovereign.

The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the
generally accepted principles of international law that we have adopted as
part of the law of our land under Article 11, Section 2. This latter provision
merely reiterates a policy earlier embodied in the 1935 and 1973
Constitutions and also intended to manifest our resolve to abide by the rules
of the international community.

While the doctrine appears to prohibit only sects against the state
without its consent, it is also applicable to complaints filed against officials
of the state for acts allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such officials will require the
state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against
them, the suit must be regarded as against the state itself although it has not
been formally impleaded. It must be noted, however, that the rule is not so
all-encompassing as to be applicable under all circumstances.

It is a different matter where the public official is made to account in

his capacity as such for acts contrary to law and injurious to the rights of
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen etc., et al. "Inasmuch as
the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity against a State officer or
the director of a State department on the ground that, while claiming to act
for the State, he violates crime invades the personal and property rights of
the plaintiff, under an unconstitutional act or under an assumption of
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authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent.
The rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.

They state that the doctrine of immunity from suit will not apply and
may not be invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are sued
in their individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is
a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his
act done with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.

The agents and officials of the United States armed forces stationed in
Clark Air Base are no exception to this rule. In the case of United States of
America, et al. vs. Guinto, etc., et al., ante we declared:

It bears stressing at this point that the above observations do not confer on
the United States of America blanket immunity for all acts done by it or its
agents in the Philippines. Neither may the other petitioners claim that they
are also insulated from suit in this country merely because they have acted
as agents of the United States in the discharge of their official functions.

PART XV
ARTICLE XVIII - TRANSITORY PROVISIONS

1. Sections 1-27

2. PCGG Cases

Read:
a. Republic vs. Sandiganbayan, 200 SCRA 530
a.-1 BATAAN SHIPYARD AND ENGINEERING COMPANY VS. PHILIPPINE
COMMISSION ON GOOD GOVERNMENT, May 27, 1987, 150 SCRA 181
b. RICARDO SILVERIO VS. PCGG, G.R. No. 77645, Oct. 26, 1987,155
SCRA 60
c. KWONG, et al vs. PCGG, G.R. No. 79484, December 7, 1987,156 SCRA
222
d. PALM AVENUE REALTY DEVELOPMENT CORPORATION VS.
PCGG, G.R. No. 76296, August 31, 1987,153 SCRA 579
e. LIWAYWAY PUBLISHING, INC. VS. PCGG, April 15, 1988,160 SCRA
f. PCGG VS. PENA, 159 SCRA 556
g. Executive Order No. 275

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