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OUTLINE OF NOTES &

CASES IN POLITICAL LAW


June 2010 Edition

Prepared 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, Cebu City, Naga
City and Tacloban City)

POWERHAUS PRE-BAR REVIEW CENTER


(Manila, Santiago City and Tagbilaran City)
COSMOPOLITAN BAR REVIEW CENTER
(Baguio City)

PART I

2
DEFINITIONS AND CONCEPTS

1. Define: a. Political Lawis 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.
c.
d.
e.
f.
g.
h.

Constitutional Law
Constitution
Administrative Law
Law of Public Officers
Law on Public Corporations
Election Law
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.
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.
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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 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.
The Congress shall provide for
implementation of the exercise of this right.

the

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
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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 votes of all its members (whether voting
jointly or separately) AMEND any provision of the Constitution?
Answer: No. It can only propose amendments by 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 peoples
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 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
UNICAMERALPARLIAMENTARY 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:
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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 GROUPS PETITION
COMPLIES WITH SECTION 2, ARTICLE XVII OF THE
CONSTITUTION ON AMENDMENTS TO THE
CONSTITUTION THROUGH PEOPLES 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 GROUPS PETITION.
H E L D:
There is no merit to the petition.
The Lambino group miserably failed to comply with the basic requirements
of the Constitution for conducting a peoples initiative. Thus, there is even no need
to revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Groups 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 peoples 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:
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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
PresidentAs 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:
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 CONTAINS 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 peoples 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
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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.
(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 peoples 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, peoples 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
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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)
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 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
2009 BAR:
QUESTION
No.XVIII. What are the essential elements of a valid petition for a peoples initiative
to amend the 1987 constitutions?
SUGGESTED ANSWER:
The essential elements of a valid petition for a peoples initiative are:
1. The people must author and sign the entire proposal; no agent or
representative can sign in their behalf;
2. The proposal must be embodied in the petition; and
3. The number of people who petitioned must be at least 12% of the total
number registered voter, of which every legislative district must be
represented by at least 3% of the registered voter therein.
4. Any amendment through peoples initiative shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not earlier
than 60 days nor later than 90 days after the certification by the
Commission on Election of the sufficiency of the petition.

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 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
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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
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
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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
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 peoples
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?
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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 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
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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, 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
13

14
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
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 autolimitation: "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 autolimitation, which, in the succinct language of
Jellinek, "is the property of a state-force due to which
it has the exclusive capacity of legal selfdetermination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what
otherwise is illimitable competence." The opinion
14

15
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.
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
15

16
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 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.
4) AGUSTIN VS. EDU, 88 SCRA 195
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
16

17
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.
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 appellants 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:
17

18
1) PAMIL VS. TELERON, 86 SCRA 413
2) GERMAN VS. BARANGAN, 135 SCRA 514
(NOTE: Read the dissenting opinions in both cases)
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, nonprofit cemeteriesactually, 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
registeredas 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.
18

19
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
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.
19

20
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 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,
20

21
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 wellfounded 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
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.

21

22
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 nonmembership 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)
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
22

23
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
Section 23. The State shall encourage nongovernmental, 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
23

24
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
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 years 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
1[4]

Annex E of the Petition in G.R. No. 174318.


24

25
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.

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
PCGGs 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, Senates 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 self2[6]

Annex F of the Petition in G.R. No. 174318.


Annex G of the Petition in G.R. No. 174318.
4[8]
Annex A of the Petition in G.R. No. 174318.
3[7]

25

26
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.
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:
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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
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.
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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.
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
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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 an undue delegation of legislative
power, relying upon Municipality of Cardona vs.
Municipality of Binagonan (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 (Binagonan), 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
Binagonan [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
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(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 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.
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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.
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 GovernorGeneral 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.
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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 GovernorGeneral. 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 "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 GovernorGeneral 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
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33
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.
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
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34
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 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
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35
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 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 quasijudicial 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
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36
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 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 farfetched 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 quasijudicial 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
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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.
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.:

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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 prosecutors 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
(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 schools 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 companys 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 prosecutors 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:
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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 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.
5[1]

Re-elected as senator in the 2004 elections.

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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.
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 persons 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
6[2]

Rollo (G.R. No. 158633), pp. 184-185.


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).
7[3]

40

41
fairly traceable to the challenged action; and the injury is likely to be redressed by a
favorable action.9[5]
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.
Pimentels 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]
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:
9[5]

Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740.
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.
10[6]

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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.
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
14[10]

50 Phil. 259, 309 (1927).


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.
15[11]

42

43
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
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 Courtdecided cases involving the constitutionality of governmental search.
18[14]

RA 9165, Sec. 2.
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. L20387, 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.
22[18]
536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS
224-227 (2004).
19[15]

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44

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 schools 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
schools 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 nonathletes 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 students 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 Fourth24[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 extracurricular 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 schools 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.
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 nondiscriminatory.
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
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).

44

45
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 Nations schoolchildren is as important as
enhancing efficient enforcement of the Nations 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
Lasernas 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 in their rulings that the mandatory drug tests violate
a citizens 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 ones person
or from intrusion into ones private activities in such a way as to cause humiliation
to a persons 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
25[21]

Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96.
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.
26[22]

29[25]

Rollo (G.R. No. 158633), p. 9.


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.
30[26]

45

46
though that the right to privacy yields to certain paramount rights of the public
and defers to the states 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 individuals 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 employeesand students for that matterunder 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 companys
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
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 companys 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 employees 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
33[29]

62 Am. Jur. 2d, Privacy, Sec. 17.


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.
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.
34[30]

46

47
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 individuals privacy interest under the premises. The Court
can consider that the illegal drug menace cuts across gender, age group, and socialeconomic 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 investors 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
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
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.
41[37]
CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND
EMPLOYEES, Sec. 2.
42[38]
CONSTITUTION, Art. XI, Sec. 1.

47

48
student handbook and with notice to parents. On the part of officers/employees, the
testing shall take into account the companys 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
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 prosecutors 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 prosecutors 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
prosecutors 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)
43[39]

Tatad, supra note 6, at 351.


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

48

49
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, 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.
[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
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
[1]

45[1]

Under Rule 65 of the Rules of Court.

49

50
No. 7837 on the ground that Republic Act No. 937146[2] the law that
Resolution No. 7837 implements is unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros 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 Oros legislative district from one to
two. For the election of May 2007, Cagayan de Oros 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 Citys 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, 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.

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.

49[5]

Id., p. 25.

50[6]

Id., pp. 23-24.

51[7]

Id., pp. 3-22.

52[8]

Id., pp. 60-93

50

51
Since the Court did not grant the petitioners 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 respondents 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 Oros territory, population and income
classification; hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the Courts 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,
warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro Citys
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 voters sovereign power to decide on who
should be elected as the entire citys 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?

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?

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.

53[9]

G.R. No. 138298, November 29, 2000, 346 SCRA 485.

54 [10]

Rollo, pp. 123-148.

51

52
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 Courts 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 lowerranked court exercising concurrent jurisdiction with a higher court.58[14]
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 nations 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
Requirement.

Plebiscite

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 Citys 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 Blacks 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]
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.
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

59[15]
60[16]
61[17]
62[18]
63[19]

See: Bautista v. COMELEC, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.
Blacks Law Dictionary, 5th Edition, p. 91.
Clapp, James E., Dictionary of Law (2000), p. 33.
Blacks Law Dictionary,

supra note 17, p. 1137.

52

53
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
(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.

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).

53

54
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 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
67 [23]

Supra note 18.

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.

54

55
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.
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]
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.

55

56
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
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 units corporate
existence begins upon the election and qualification of its chief executive
and a majority of the members of its Sanggunian.81[37]

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.

56

57
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
administration of local affairs83[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, Pigsagan, 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
82[38]

Lidasan v. Commission on Elections, G.R. No. L-28089 October 25, 1967, 21 SCRA 496.

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.

57

58
apportionment made. The effect on the Sangguniang Panglunsod, however,
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
citys 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
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
85[41]
86 [42]

87[43]
88[44]

Enacted into law on November 6, 1987.


As provided by COMELEC Res. No. 7801 that COMELEC Res. No. 7837 superseded.

Rollo, p. 71.
G.R. No. 131499, November 17, 1999, 318 SCRA 337.

58

59
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 Oros 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 petitioners 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]
WHEREFORE, we hereby DISMISS the petition for lack of merit.
Formula in determining the
party-list representatives Is the 20%
ceiling mandatory? (Veterans vs.
COMELEC Formula abandoned)

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.

59

60
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,92[1] assails the Resolution93[2] promulgated on 3 August 2007 by
the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The
COMELECs 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,94[3] assails NBC Resolution No.
07-6095[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 that, upon completion of the canvass of the partylist results, it would determine the total number of seats of each winning
party, organization, or coalition in accordance with Veterans Federation
Party v. COMELEC96[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.97[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.98[7] There were no intervenors in BANATs
petition before the NBC. BANAT filed a memorandum on 19 July 2007.
92
93
94
95
96
97
98

60

61

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), Gabrielas Women Party (Gabriela), Association of
Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens
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 SubCommittee 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
i. Total party-list votes already canvassed/tabulated

15,283,659

ii. Total party-list votes remaining uncanvassed/


untabulated (i.e. canvass deferred)

1,337,032

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
Pagalungan, Maguindanao)

102,430

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,
61

62
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 sixtytwo (334,462) votes;
WHEREAS, the Supreme Court, in
Citizens 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
1

PARTY/ORGANIZATION/
COALITION

VOTES
RECEIVED

BUHAY

1,163,21
8

BAYAN MUNA

972,73
0

CIBAC

760,26
0

GABRIELA

610,45
1

APEC

538,97
1

A TEACHER

476,03
6

AKBAYAN

470,87
2

ALAGAD

423,07
6

BUTIL

405,05
2

10

COOP-NATCO

390,02
9

11

BATAS

386,36
1

12

ANAK PAWIS

376,03
6

13

ARC

338,19
4

14

ABONO

337,04
6

WHEREAS, except for Bagong


Alyansang Tagapagtaguyod ng Adhikaing
62

63
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:
1 Buhay Hayaan Yumabong

BUHAY

2 Bayan Muna

BAYAN MUNA

3 Citizens Battle Against Corruption

CIBAC

4 Gabriela Womens Party


5 Association
Cooperatives

of

GABRIELA

Philippine

Electric

6 Advocacy for Teacher Empowerment


Through Action, Cooperation and Harmony
Towards Educational Reforms, Inc.

APEC
A TEACHER

7 Akbayan! Citizens 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 partylist results.
The

proclamation

of

Bagong
63

64
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.99[8] (Emphasis in the
original)
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 COMELECs
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 partylist 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

BUHAY

1,178,747

BAYAN MUNA

977,476

CIBAC

755,964

GABRIELA

621,718

APEC

622,489

99

64

65
6

A TEACHER

492,369

AKBAYAN

462,674

ALAGAD

423,190

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 Citizens Battle Against
Corruption (CIBAC) versus 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 received
by the first party

Additional seats

Equal to or at least 6%

Two (2) additional


seats

Equal to or greater than 4% but less


than 6%

One (1) 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%
65

66
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 seats allocated to
a concerned party
No. of votes of
first party
first party
WHEREAS, applying the
formula, the results are as follows:

above

Party List

Percentage

Additional
Seat

BAYAN MUNA

1.65

CIBAC

1.28

GABRIELA

1.05

APEC

1.05

A TEACHER

0.83

AKBAYAN

0.78

ALAGAD

0.71

BUTIL

0.69

COOP-NATCO

0.69

ANAKPAWIS

0.62

ARC

0.63

ABONO

0.57

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

BAYAN MUNA

CIBAC

GABRIELA

1
66

67
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, 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.100[9]

Acting on BANATs 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 --

100

67

68
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 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.
68

69

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 PartyList 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 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
implement this resolution.

Committee

SO ORDERED.101[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.102[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), 103[12] Anak
101
102
103

69

70
Mindanao (AMIN),104[13] and An Waray.105[14]
Per the
106[15]
certification
by COMELEC, the following party-list
organizations have been proclaimed as of 19 May 2008:
Party-List

No. of Seat(s)

1.1

Buhay

1.2

Bayan Muna

1.3

CIBAC

1.4

Gabriela

1.5

APEC

1.6

A Teacher

1.7

Akbayan

1.8

Alagad

1.9

Butil

1.10

Coop-Natco [sic]

1.11

Anak Pawis

1.12

ARC

1.13

Abono

1.14

AGAP

1.15

AMIN

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
representatives be allocated?107[16]

party-list

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


hand, raised the following issues in their petition:
104
105
106
107

70

71

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 FirstParty Rule in the allocation of
seats to
qualified party-list organizations as said rule:
A.
Violates the
principle of proportional
representation.

constitutional

B.
Violates the provisions of RA
7941 particularly:
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 FirstParty 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.108[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:
108

71

72

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?
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?109[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.110[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.
109
110

72

73

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 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:
73

74

Number of seats
available to
legislative
districts

x .20
=

Number of seats
available to
party-list 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
14th Congress of the Philippines has 220 district
representatives, there are 55 seats available to party-list
representatives.
220

x .20
=

55

.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,111[20] and
Justice Vicente V. Mendozas dissent in Veterans presented
Germanys Niemeyer formula112[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,113[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
111
112
113

74

75
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.
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 partylist 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 (1st 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
75

76
which have not secured the maximum three
(3) seats under the 2% threshold rule, in
accordance with Section 12 of RA 7941.114[23]
Forty-four (44) party-list seats will be awarded under
BANATs 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 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.115[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.116[25] Thirty-four (34) party-list seats will
be awarded under BANATs second interpretation.
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher
criticize both the COMELECs 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. 117
[26]

We examine what R.A. No. 7941 prescribes to allocate seats


for party-list representatives.
114
115
116
117

76

77
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.118
[27]

Rank

Party

Votes
Rank
Garnered

1 BUHAY

1,169,234

2 BAYAN
MUNA

Party

Votes
Garnered

48 KALAHI

88,868

979,039

49 APOI

79,386

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 COOPNATCCO

409,883

56 GRECON

62,220

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
CITIZENS

213,058

73 ASAP

34,098

27 AT

197,872

74 PEP

33,938

28 VFP

196,266

75 ABA
ILONGGO

33,903

29 ANAD

188,521

76 VENDORS

33,691

30 BANAT

177,028

77 ADD-TRIBAL

32,896

118

77

78
31 ANG
KASANGGA

170,531

78 ALMANA

32,255

32 BANTAY

169,801

79 AANGAT KA
PILIPINO

29,130

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

36 COCOFED

155,920

83 SM

20,744

37 AGHAM

146,032

84 AG

16,916

38 ANAK

141,817

85 AGING PINOY

16,729

39 ABANSE!
PINAY

130,356

86 APO

16,421

40 PM

119,054

87 BIYAYANG
BUKID

16,241

41 AVE

110,769

88 ATS

14,161

42 SUARA

110,732

89 UMDJ

9,445

43 ASSALAM

110,440

90 BUKLOD
FILIPINA

8,915

44 DIWA

107,021

91 LYPAD

8,471

45 ANC

99,636

92 AA-KASOSYO

8,406

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 partylist 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. 119
[28]

Rank

Party

1 BUHAY

Votes Garnered
Votes
over Total Votes Guaranteed
Garnered for Party-List,
Seat
in %
1,169,234

7.33%

2 BAYAN MUNA

979,039

6.14%

3 CIBAC

755,686

4.74%

4 GABRIELA

621,171

3.89%

5 APEC

619,657

3.88%

119

78

79
6 A TEACHER

490,379

3.07%

7 AKBAYAN

466,112

2.92%

8 ALAGAD

423,149

2.65%

9 COOP-NATCCO

409,883

2.57%

409,160

2.57%

385,810

2.42%

12 ARC

374,288

2.35%

13 ANAKPAWIS

370,261

2.32%

14 ABONO

339,990

2.13%

15 AMIN

338,185

2.12%

16 AGAP

328,724

2.06%

17 AN WARAY

321,503

2.02%

10 BUTIL
11 BATAS

120[29]

Total

17

18 YACAP

310,889

1.95%

19 FPJPM

300,923

1.89%

20 UNI-MAD

245,382

1.54%

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 partylist 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
120

79

80
parties all get one million votes. Only 50 parties get a seat
despite the availability of 55 seats. 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.121[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 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

121

80

81
remaining available seats corresponds to a partys share in
the remaining available seats. Second, we assign one partylist 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

Rank

Party

Votes
(B)
Garner
Additio
Applyi
Guarante
plus
ed
nal
ng the
ed Seat
(C), in
over
Seats
three
whole
Total
seat
integ
Votes
cap
Votes
ers
for
Garner
Party
ed
List, in
(First
%
(Second
Round)
Round)
(B)

(C)

BUHAY

1,169,2
34

7.33%

2.79

N.A.

BAYAN
MUNA

979,039

6.14%

2.33

N.A.

CIBAC

755,686

4.74%

1.80

N.A.

GABRIELA

621,171

3.89%

1.48

N.A.

APEC

619,657

3.88%

1.48

N.A.

A Teacher

490,379

3.07%

1.17

N.A.

AKBAYAN

466,112

2.92%

1.11

N.A.

ALAGAD

423,149

2.65%

1.01

N.A.

COOPNATCCO

409,883

2.57%

N.A.

10

BUTIL

409,160

2.57%

N.A.

11

BATAS

385,810

2.42%

N.A.

12

ARC

374,288

2.35%

N.A.

13

ANAKPAWI
S

370,261

2.32%

N.A.

14

ABONO

339,990

2.13%

N.A.

15

AMIN

338,185

2.12%

N.A.

16

AGAP

328,724

2.06%

N.A.

17

AN WARAY

321,503

2.02%

N.A.

18

YACAP

310,889

1.95%

N.A.

19

FPJPM

300,923

1.89%

N.A.

20

UNI-MAD

245,382

1.54%

N.A.

21

ABS

235,086

1.47%

N.A.

122[31

(E)

(D)

(A)

122

81

82
22

KAKUSA

228,999

1.44%

N.A.

23

KABATAAN

228,637

1.43%

N.A.

24

ABA-AKO

218,818

1.37%

N.A.

25

ALIF

217,822

1.37%

N.A.

26

SENIOR
CITIZENS

213,058

1.34%

N.A.

27

AT

197,872

1.24%

N.A.

28

VFP

196,266

1.23%

N.A.

29

ANAD

188,521

1.18%

N.A.

30

BANAT

177,028

1.11%

N.A.

31

ANG
170,531
KASANGGA

1.07%

N.A.

32

BANTAY

169,801

1.06%

N.A.

33

ABAKADA

166,747

1.05%

N.A.

34

1-UTAK

164,980

1.03%

N.A.

35

TUCP

162,647

1.02%

N.A.

36

COCOFED

155,920

0.98%

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 partylist 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 multiparty 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
82

83
parties? Can they run under the party list
concept or must they be under the 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
Taada wants to run under BAYAN group and
says that he represents the farmers, would he
qualify?
MR. VILLACORTA.
Taada would not qualify.

No, Senator

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?
83

84

MR. TADEO. Ang punto lamang


namin, pag pinayagan mo ang UNIDO na
isang political party, it will dominate the party
list at mawawalang saysay 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
84

85
that they have in Europe where labor
organizations and cooperatives, for example,
distribute themselves either in the Social
Democratic Party and the 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 123[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.
123

85

86

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 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, 1922, any permanent sectoral seats, and in the alternative the
reservation of the party-list system to the sectoral groups.124
[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.
124

86

87

The qualifications of party-list nominees


prescribed in Section 9 of R.A. No. 7941:

are

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 organizations nominee wallow in poverty,
destitution and infirmity125[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,126[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
125
126

87

88
major political parties 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.127[3] The constitution of BUHAY provides for a threeyear term for all its party officers, without re-election.128[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.129[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.130[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 BUHAYs 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 Seeres, holding himself
up as acting president and secretary-general of BUHAY, also filed a
Certificate of Nomination with the COMELEC, nominating: (i)
himself, (ii) Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv)
Victor Pablo C. Trinidad, and (v) Eduardo C. Solangon, Jr.131[7]
Consequently, on April 17, 2007, Seeres filed with the
COMELEC a Petition to Deny Due Course to Certificates of
127
128
129
130
131

88

89
Nomination.132[8] In it, petitioner Seeres 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, Seeres would claim that the
nominations made by Robles were, for lack of authority, null and
void owing to the expiration of the latters term as party president.
Furthermore, Seeres asserted that Robles was, under the
Constitution,133[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 Seeres 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 resolution134[10] expelling Seeres as party member for his act of
submitting a Certificate of Nomination for the party. The resolution
reads in part:
WHEREAS, Hans Christian M. Seeres, 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. Seeres, 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. Seeres, 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 partys 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. Seeres, in view of
the foregoing, underwent Party Discipline process
pursuant to Article VII of the Constitution and ByLaws of the Party.
xxxx
WHEREAS, after a careful examination of the
[evidence] on his case, the National Council found
Hans Christian M. Seeres 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. Seeres as a member of the
party effective close of business hour of 10 May
2007.
132
133
134

89

90

BE IT RESOLVED FURTHER, that all rights and


privileges pertaining to the membership of Hans M.
Seeres 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.
Seeres name in the roll of members in the said
lower house. 135[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, 2007.136[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. Seeres, Hermenegildo Dumlao, Antonio R.
Bautista, Victor Pablo Trinidad and Eduardo Solangon, Jr.137[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.138[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.139[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.140[16]
The COMELEC disposed of the partisan political activity
issue with the terse observation that Seeres arguments on the
applicability to Robles of the prohibition on partisan political
activity were unconvincing.141[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.142[18]
135
136
137
138
139
140
141
142

90

91
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.143[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.144[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 Seeres 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. 145[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.146[22] For certiorari to prosper, however, there
must be a showing that the COMELEC acted with grave abuse of
discretion 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 Seeres. 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

143
144
145
146

91

92
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.147[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 Tribunals jurisdiction over
election contests relating to its members.148[24]
The House of Representatives Electoral Tribunals (HRETs)
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. 149[25] Thus, once a
winning candidate has been proclaimed, taken his oath, and assumed
office as a Member of the House of Representatives, COMELECs
jurisdiction over elections relating to the election, returns, and
qualifications ends, and the HRETs own jurisdiction begins.150[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.151[27] The proclamation came
in the form of two Resolutions dated July 9, 2007 and July 18,
2007,152[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
147
148
149
150
151
152

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93
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.153[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 Seeres 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. 154
[30]

Since Seeres 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, petitioners postulations are bereft of merit.
Act of Nominating Is Not Partisan Political Activity
Petitioner Seeres 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.155[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
153
154
155

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94
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 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
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95
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 partys Certificate of
Nomination to the COMELEC.156[32] The act of nominating
BUHAYs 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 BUHAYs 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 BUHAY.
Robles connection with LRTA could not really be considered as a
factor invalidating the nomination process.
Hold-Over Principle Applies
Petitioner Seeres 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, petitioners 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.157[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.158[34] This is the
analogical situation obtaining in the present case. The voting
156
157
158

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96
members of BUHAY duly elected Robles as party President in
October 1999. And although his regular term as such President
expired in October 2002,159[35] no election was held to replace him
and the other original set of officers.160[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 holdover 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 termno successor having, in the meantime, been
appointed or chosenis 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.161[37] By fiction of law, the
acts of such de facto officer are considered valid and effective.162[38]
So it must be for the acts of Robles while serving as a holdover Buhay President. Among these acts was the submission of the
nomination certificate for the May 14, 2007 elections.
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.163[39]
Again, it cannot be denied that Robles, as BUHAY President,
signed all manifestations of the partys desire to participate in the
2001 and 2004 elections, as well as all Certificates of Nomination. 164
[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 partys success. 165[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,
159
160
161
162
163
164
165

96

97
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:
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
**

Those born before January 17, 1973, of Filipino mothers who elect Philippine citizenship upon reaching the age of
majority.

97

98
as a Member of the
House
of
Representatives
who
was 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
petitioners 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.
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99
(Note,
however, that
if
the
disqualificatio
n
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 30 th
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
representatives to the Hose of Representatives.

Sectoral

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
4. 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.
99

100
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.
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 Presidents 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
6. 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:
SCRA 22

Martinez vs. Morfe, MARTINEZ VS. MORFE, 44

b. Freedom of Speech and debate


Read:
1) OSMENA VS. PENDATUN, 109 Phil. 863
2) JIMENEZ VS. CABANGBANG, 17 SCRA 876
7. 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
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101
conflict of interest that may arise from the
filing of a proposed legislation of which they
are authors.
8. Section 13. No Senator or Member of the
House of Representatives may hold any other
office or employment in the government, or any
subdivision, agency or instrumentality thereof,
including government-owned 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
9. 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
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102
allowed to appear under the guise that he is appearing as
such, not as counsel for the corporation.
10. 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
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103
one fifth of the members present, be entered in the
journal.
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 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
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104
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.
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 Resolution166[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 Resolution167[2]
dated June 29, 2007, affirming her disqualification; and (3) the COMELEC
En Banc Resolution168[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 Candidacy169[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.
(PES) A07-006,170[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. A07-007.171[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 Answers172[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
166[1]

Rollo (G.R. Nos. 178831-32), pp. 24-36.


Id. at 53-66.
168[3]
Id. at 181-183.
169[4]
Id. at 74.
170[5]
Id. at 75-77.
171[6]
Id. at 82-87.
172[7]
Id. at 100-144.
167[2]

104

105
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 fathers 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. 07-247173[17] and 07-248,174[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 votes175[19] or by
a margin of 7,746 votes over another congressional candidate, Olivia
Paras176[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.177[21]
In a Joint Resolution178[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.179[24]
The following day, or on May 18, 2007, the COMELEC En Banc
issued Resolution No. 8062180[25] adopting the policy-guidelines of not
173[17]

Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong,


Respondent.
174[18]
Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong,
Respondent.
175[19]
Rollo (G.R. Nos. 178831-32), p. 152.
176[20]
Rollo (G.R. Nos. 179132-33), p. 103.
177[21]
Id. at 135-141.
178[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.
179[24]
Rollo (G.R. Nos. 179132-33), pp. 168-169, 201.
180[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

105

106
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.181[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. 8062.182[27] On same date, Villando, one of the petitioners in
the disqualification cases, filed an Urgent Manifestation Clarifying
COMELEC Resolution No. 8062 with Motion,183[28] praying that the
COMELEC should not lift the suspension of Limkaichongs 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.184[29]
Thereafter, or on May 30, 2007, Paras filed with the COMELEC a
Petition to Nullify and/or Annul the Proclamation of Jocelyn SyLimkaichong as First District Representative of Negros Oriental in
relation to the May 17, 2007 Joint Resolution of the COMELEC
Second Division,185[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,186[31] ratiocinating that the
disqualification cases were not yet final when Limkaichong was
proclaimed.
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
play, RESOLVED as it hereby RESOLVES, to adopt the following policyguidelines 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.

181[26]

Rollo (G.R. No. 179132-33), pp. 37-52


Id. at 147-149.
183[28]
Rollo (G.R. Nos. 179132-33), pp. 158-162.
184[29]
Rollo (G.R. Nos. 178831-32), p. 152.
185[30]
Rollo (G.R. No. 179132-33), pp. 165-192.
186[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.).
106
182[27]

107
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.187[32]
Meanwhile, in a Resolution188[33] dated June 29, 2007, the
COMELEC En Banc, in an equally divided vote of 3:3, denied
Limkaichongs 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.189[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, 190
[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.191[37]
In the interim, then Speaker of the House of Representatives Jose de
Venecia, Jr. (De Venecia) allowed Limkaichong to officially assume the
office as a Member of the House of Representatives on July 23, 2007, as
shown in the Journal of the House of Representatives.192[38]

187[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.)
188[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 Limkaichongs 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 Limkaichongs motion should be dismissed by the COMELEC for lack of
jurisdiction.
189[35]
Id. at 159-163.
190[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.
191[37]

Rollo (G.R. Nos. 179132-33), pp. 213-214.


Id. at 238-256.

192[38]

107

108
Despite Limkaichongs repeated pleas for the resolution of her
manifestation and motion for clarification,193[39] the COMELEC did not
resolve the same. Hence, on August 1, 2007, she filed with this Court a
Petition for Certiorari194[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
Limkaichongs manifestation and motion for clarification,195[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 196[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.197[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 Injunction198[44] under Rule 65 of the 1997 Rules of Civil
Procedure, docketed as G.R. Nos. 179132-33, seeking, among others, the
ouster of Limkaichong from the House of Representatives on account of her

193[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.
194[40]

Id. at 3-20.
Id. at 181-183.
196[42]
Rollo (G.R. No. 179120), pp. 3-21.
197[43]
Id. at 19-20.
198[44]
Rollo (G.R. Nos. 179132-33), pp. 3-70.
195[41]

108

109
disqualification and for the holding of special elections to fill the vacancy
created by such.199[45]
On even date, the COMELEC Second Division promulgated a
Resolution200[46] denying Villando's motion to suspend the proclamation of
Limkaichong, which denial was affirmed by the COMELEC En Banc in a
Resolution201[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 Order202[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 Resolution203[49] because it still acted on Limchaikongs
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:
3

Whether the proclamation of Limkaichong by the


Provincial Board of Canvassers of Negros Oriental is
valid;

Whether said proclamation divested the Commission on


Elections of jurisdiction to resolve the issue of
Limkaichong's citizenship;

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 naturalborn 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
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:
199[45]

Id. at 69-70.
Rollo (G.R. Nos. 178831-32), pp. 468-470.
201[47]
Id. at 471-481.
202[48]
Rollo (G.R. Nos. 179240-41), pp. 3-28.
203[49]
Supra note 41.
200[46]

109

110
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 Limkaichongs 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.204[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 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
Limkaichongs proclamation was void in accordance with the Court's
pronouncement in the case of Codilla v. De Venecia.205[51]

204[50]

COMELEC Rules of Procedure, Rule 19, Sec. 2.


442 Phil. 139 (2002).

205[51]

110

111
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 Limkaichongs 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 Limkaichongs argument
that following her valid proclamation, the COMELECs 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
COMELECs rule-making power. As such, it cannot supersede the Joint
Resolution of the Second Division which was rendered pursuant to the
COMELECs quasi-judicial power.
His argument is specious. Resolution No. 8062 is not only a policyguideline.
It is also an administrative interpretation of the two (2)
provisions of the 1987 Constitution, namely: (i) Section 17, 206[52] Article VI
(ii); Section 2(2),207[53] Article IX-C; Section 6208[54] of R.A. 6646; and

206[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 partylist system represented therein. The senior justice in the Electoral Tribunal shall be its Chairman.
207[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.
208[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.

111

112
Sections 241209[55] and 243,210[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.211[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.212[58]
Resolution No. 8062 is a valid exercise of the COMELECs
constitutionally mandated power to promulgate its own rules of procedure
relative to the conduct of the elections. 213[59] In adopting such policyguidelines 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,214[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.
209[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.
210[56]

Section 243 of the OEC provides:


SEC. 243. Issues that may be raised in preproclamation controversy. - The following shall be proper issues that may be raised in preproclamation 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.
211[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).
212[58]
Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986).
213[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.
214[60]

G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537.

112

113
Limkaichongs 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 that time, the Division Resolution disqualifying her
has not yet became final as a result of the motion for reconsideration.

113

114
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 Limkaichongs 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.215[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 250 216[62] of the OEC underscores the exclusivity
of the Electoral Tribunals' jurisdiction over election contests relating to its
members.217[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.

215[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).
216[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.
217[63]
Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul
v. Commission on Elections, 371 Phil. 760, 766 (1999).
114

115
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 the suspension of proclamation of the winning
Congressional candidate for the First District of Negros
Oriental.

115

116
WHEREFORE, the instant petition is DISMISSED.
SO ORDERED.
Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41)
steadfastly maintained that Limkaichongs 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.218[64] The Court has shed light on this in the case
of Vinzons-Chato,219[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 selfevident, 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 members 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:
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
218[64]

Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157
SCRA 337, 338.
219[65]
Supra note 61, at 180.
116

117
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 ones
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.
Commission on Elections,220[66] 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,221[67] the Court held that:
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
220[66]

G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44.
G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied)

221[67]

117

118
requirements and must be possessed not only at the time
of appointment or election or assumption of office but
during the officers 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 x x
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:
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
118

119
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 citizens
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, 222[69] the only
remaining record of the naturalization proceedings,223[70] and ruled on the
basis thereof that the naturalization proceedings of Julio Ong Sy,
Limkaichongs father, in Special Case No. 1043, were null and void. The
COMELEC Second Division adopted Villando and Cameros 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.
We cannot resolve the matter of Limkaichongs 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.

222[69]

Rollo p. 97.
Id. at 172 and 175.

223[70]

119

120
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 2,224[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,225[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 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 Limkaichongs 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
224[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.
225[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).

120

121
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.
Biraogo's contention was that De Venecia226[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 Limkaichongs 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.

226[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.
121

122
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 ones
qualification or disqualification, would amount to disenfranchising the
electorate in whom sovereignty resides.227[74]
WHEREFORE, premises considered, the petition in G.R. Nos.
178831-32 is GRANTED and the Joint Resolution of the COMELEC
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
11. 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

227[74]

See Codilla v. De Venecia, 442 Phil. 139 (2002).


122

123
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---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


123

124
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 conversatio
purportedly between the President of the Philippines and a high-ranking official of th
Commission on Elections (COMELEC) surfaced. They captured unprecedented public attentio
and thrust the country into a controversy that placed the legitimacy of the present administratio
on the line, and resulted in the near-collapse of the Arroyo government. The tapes, notoriousl
referred to as the Hello Garci tapes, allegedly contained the Presidents instructions t
COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 200
presidential elections. These recordings were to become the subject of heated legislative hearing
conducted separately by committees of both Houses of Congress.228[1]

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leade
Francis G. Escudero delivered a privilege speech, Tale of Two Tapes, and set in motion
congressional investigation jointly conducted by the Committees on Public Information, Publi
Order and Safety, National Defense and Security, Information and Communications Technology
and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, severa
versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau o
Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NB
Deputy Director Samuel Ong submitted to the respondent House Committees seven allege
original tape recordings of the supposed three-hour taped conversation. After prolonged an
impassioned debate by the committee members on the admissibility and authenticity of th
recordings, the tapes were eventually played in the chambers of the House.229[2]

On August 3, 2005, the respondent House Committees decided to suspend the hearing
indefinitely. Nevertheless, they decided to prepare committee reports based on the said recording
and the testimonies of the resource persons.230[3]

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed wit


this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Orde
and/or Writ of Preliminary Injunction 231[4] docketed as G.R. No. 170338. He prayed that th
respondent House Committees be restrained from using these tape recordings of the illegall
obtained wiretapped conversations in their committee reports and for any other purpose. H
further implored that the said recordings and any reference thereto be ordered stricken off th
records of the inquiry, and the respondent House Committees directed to desist from further usin
the recordings in any of the House proceedings.232[5]

Without reaching its denouement, the House discussion and debates on the Garci tapes
abruptly stopped.

228[1]

Rollo (G.R. No. 179275), p. 168.

229[2]

Rollo (G.R. No. 170338), pp. 7-9.

230[3]

Id. at 9.

231[4]

Id. at 1-38.

232[5]

Id. at 36-38.

124

125

After more than two years of quiescence, Senator Panfilo Lacson roused the slumberin
issue with a privilege speech, The Lighthouse That Brought Darkness. In his discourse, Senato
Lacson promised to provide the public the whole unvarnished truth the whats, when
wheres, whos and whys of the alleged wiretap, and sought an inquiry into the perceive
willingness of telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to th


Senate Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who ha
previously filed two bills233[6] seeking to regulate the sale, purchase and use of wiretappin
equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing electora
duties.234[7]

In the Senates plenary session the following day, a lengthy debate ensued when Senato
Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.) No
4200235[8] if the body were to conduct a legislative inquiry on the matter. On August 28, 2007
Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her considered view
that the Constitution absolutely bans the use, possession, replay or communication of the content
of the Hello Garci tapes. However, she recommended a legislative investigation into the role o
the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other governmen
entities in the alleged illegal wiretapping of public officials.236[9]

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justice
of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for th
Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, 237[10] docketed a
G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. The
argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3
Article III of the Constitution.238[11]

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearing
on the Hello Garci tapes on September 7,239[12] 17240[13] and October 1,241[14] 2007.

Intervening as respondents,242[15] Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C


Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal an
Antonio F. Trillanes filed their Comment243[16] on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument.244[17]

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of th
resource persons summoned by the Senate to appear and testify at its hearings, moved to interven
as petitioner in G.R. No. 179275.245[18]

233[6]

Rollo (G.R. No. 179275), pp. 215-220.

234[7]

Id. at 169.

235[8]

An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communications
and for Other Purposes.
236[9]

Rollo (G.R. No. 179275), pp. 169-170.

237[10]

Id. at 3-17.

238[11]

Id. at 7-13.

239[12]

Id. at 24.

240[13]

Id. at 44.

241[14]

Memorandum of Respondents-Intervenors, p. 6.

242[15]

Rollo (G.R. No. 179275), pp. 68-70.

243[16]

Id. at 71-90.
244

245[18]

[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:
a
Whether these Rules must be published by every Congress.
b
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.)

Motion for Leave to Intervene and Petition-in-Intervention filed on October 26, 2007.

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126

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 an
179275.246[19]

It may be noted that while both petitions involve the Hello Garci recordings, they hav
different objectivesthe first is poised at preventing the playing of the tapes in the House an
their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop th
conduct of the Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No
179275.
-I-

Before delving into the merits of the case, the Court shall first resolve the issue on th
parties standing, argued at length in their pleadings.

In Tolentino v. COMELEC,247[20] we explained that [l]egal standing or locus standi refer


to a personal and substantial interest in a case such that the party has sustained or will sustai
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 personall
suffered some actual or threatened injury because of the allegedly illegal conduct of th
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely t
be redressed by a favorable action.248[21]

The gist of the question of standing is whether a party has alleged such a personal stake in th
outcome of the controversy as to assure that concrete adverseness which sharpens the presentatio
of issues upon which the court so largely depends for illumination of difficult constitutiona
questions.249[22]

However, considering that locus standi is a mere procedural technicality, the Court, i
recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arroyo250[2
articulates that a liberal policy has been observed, allowing ordinary citizens, members o
Congress, and civic organizations to prosecute actions involving the constitutionality or validity o
laws, regulations and rulings.251[24] The fairly recent Chavez v. Gonzales252[25] even permitted
non-member of the broadcast media, who failed to allege a personal stake in the outcome of th
controversy, to challenge the acts of the Secretary of Justice and the National Telecommunication
Commission. The majority, in the said case, echoed the current policy that this Court ha
repeatedly and consistently refused to wield procedural barriers as impediments to its addressin
and resolving serious legal questions that greatly impact on public interest, in keeping with th
Courts duty under the 1987 Constitution to determine whether or not other branches o
government have kept themselves within the limits of the Constitution and the laws, and that the
have not abused the discretion given to them.253[26]

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition b
alleging that he is the person alluded to in the Hello Garci tapes. Further, his was publicl
identified by the members of the respondent committees as one of the voices in the recordings. 2
[27]
Obviously, therefore, petitioner Garcillano stands to be directly injured by the Hous
committees actions and charges of electoral fraud. The Court recognizes his standing to institut
the petition for prohibition.

246[19]

Resolution dated November 20, 2007.

247[20]

465 Phil. 385, 402 (2004).

248[21]

Tolentino v. Commission on Elections, id.

249[22]

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.

250[23]

G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160.

251[24]

David v. Macapagal-Arroyo, id. at 218.

252[25]

G.R. No. 168338, February 15, 2008, 545 SCRA 441.

253[26]

Id.

254[27]

Reply in G.R. No. 170338, pp. 36-37.

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127

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging tha
they are concerned citizens, taxpayers, and members of the IBP. They are of the firm convictio
that any attempt to use the Hello Garci tapes will further divide the country. They wish to see th
legal and proper use of public funds that will necessarily be defrayed in the ensuing publi
hearings. They are worried by the continuous violation of the laws and individual rights, and th
blatant attempt to abuse constitutional processes through the conduct of legislative inquirie
purportedly in aid of legislation.255[28]

Intervenor Sagge alleges violation of his right to due process considering that he i
summoned to attend the Senate hearings without being apprised not only of his rights therei
through the publication of the Senate Rules of Procedure Governing Inquiries in Aid o
Legislation, but also of the intended legislation which underpins the investigation. He furthe
intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds involve
in the conduct of the questioned hearings.256[29]

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the law
and that intervenor Sagge asserts his constitutional right to due process, 257[30] they satisfy th
requisite personal stake in the outcome of the controversy by merely being citizens of th
Republic.

Following the Courts ruling in Francisco, Jr. v. The House of Representatives,258[31] we fin
sufficient petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the continuou
conduct by the Senate of the questioned legislative inquiry will necessarily involve the expenditur
of public funds.259[32] It should be noted that in Francisco, rights personal to then Chief Justic
Hilario G. Davide, Jr. had been injured by the alleged unconstitutional acts of the House o
Representatives, yet the Court granted standing to the petitioners therein for, as in this case, the
invariably invoked the vindication of their own rightsas taxpayers, members of Congress
citizens, individually or in a class suit, and members of the bar and of the legal professionwhic
were also supposedly violated by the therein assailed unconstitutional acts.260[33]

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners an
intervenor Sagge advance constitutional issues which deserve the attention of this Court in view o
their seriousness, novelty and weight as precedents. The issues are of transcendental an
paramount importance not only to the public but also to the Bench and the Bar, and should b
resolved for the guidance of all.261[34]

Thus, in the exercise of its sound discretion and given the liberal attitude it has shown i
prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal standing o
petitioners Ranada and Agcaoili and intervenor Sagge.
- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedl
stressed in our prior decisions is the principle that the exercise by this Court of judicial power i
limited to the determination and resolution of actual cases and controversies. 262[35] By actual case
we mean existing conflicts appropriate or ripe for judicial determination, not conjectural o
anticipatory, for otherwise the decision of the Court will amount to an advisory opinion. Th
power of judicial inquiry does not extend to hypothetical questions because any attempt a
abstraction could only lead to dialectics and barren legal questions and to sterile conclusion
unrelated to actualities.263[36] Neither will the Court determine a moot question in a case in whic
255[28]

Rollo (G.R. No. 179275), p. 4.

256[29]

Petition-in-Intervention, p. 3.

257[30]

David v. Macapagal-Arroyo, supra note 23, at 223.

258[31]

460 Phil. 830 (2003).

259[32]

Francisco, Jr. v. The House of Representatives, id. at 897.

260[33]

Francisco, Jr. v. The House of Representatives, supra note 31, at 895.

261[34]

Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.

262[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.
263[36]

La Bugal-Blaan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890 (2004).

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128

no practical relief can be granted. A case becomes moot when its purpose has become stale. 264[37]
is unnecessary to indulge in academic discussion of a case presenting a moot question as
judgment thereon cannot have any practical legal effect or, in the nature of things, cannot b
enforced.265[38]

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, th
issuance of an injunctive writ to prohibit the respondent House Committees from playing the tap
recordings and from including the same in their committee report. He likewise prays that the sai
tapes be stricken off the records of the House proceedings. But the Court notes that the recording
were already played in the House and heard by its members. 266[39] There is also the widel
publicized fact that the committee reports on the Hello Garci inquiry were completed an
submitted to the House in plenary by the respondent committees. 267[40] Having been overtaken b
these events, the Garcillano petition has to be dismissed for being moot and academic. After al
prohibition is a preventive remedy to restrain the doing of an act about to be done, and no
intended to provide a remedy for an act already accomplished.268[41]
- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot b
allowed to continue with the conduct of the questioned legislative inquiry without dul
published rules of procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that [t]he Senate or th
House of Representatives, or any of its respective committees may conduct inquiries in aid o
legislation in accordance with its duly published rules of procedure. The requisite of publicatio
of the rules is intended to satisfy the basic requirements of due process. 269[42] Publication is indee
imperative, for it will be the height of injustice to punish or otherwise burden a citizen for th
transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. 2
[43]
What constitutes publication is set forth in Article 2 of the Civil Code, which provides tha
[l]aws shall take effect after 15 days following the completion of their publication either in th
Official Gazette, or in a newspaper of general circulation in the Philippines.271[44]

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argumen
that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been publishe
in newspapers of general circulation only in 1995 and in 2006. 272[45] With respect to the presen
Senate of the 14th Congress, however, of which the term of half of its members commenced o
June 30, 2007, no effort was undertaken for the publication of these rules when they first opene
their session.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senat
Committee on Accountability of Public Officers and Investigations,273[46] we said:

Fourth, we find merit in the argument of the OSG that respondent Committees likewis
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordanc
with the duly published rules of procedure. We quote the OSGs explanation:

The phrase duly published rules of procedure requires the Senate of every Congress t
publish its rules of procedure governing inquiries in aid of legislation because every Senate i
264[37]

Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496 SCRA 13, 46.

265[38]

Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130, 138.

266[39]

Rollo (G.R. No. 170338), p. 9.

267[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.
268[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).
269[42]

Bernas, The 1987 Constitution of the Philippines, A Commentary, 1996 ed., p. 679.

270[43]

Taada v. Tuvera, 220 Phil. 422, 432-433 (1985).

271[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.
272[45]

Rollo (G.R. No. 179275), p. 179; Memorandum of Respondents-Intervenors, pp. 9-10.

273[46]

G.R. No. 180643, March 25, 2008, 549 SCRA 77, 135-136.

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129

distinct from the one before it or after it. Since Senatorial elections are held every three (3) year
for one-half of the Senates membership, the composition of the Senate also changes by the end o
each term. Each Senate may thus enact a different set of rules as it may deem fit. Not havin
published its Rules of Procedure, the subject hearings in aid of legislation conducted by th
14th Senate, are therefore, procedurally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this rulin
with the following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing legislative body
The present Senate has twenty-four members, twelve of whom are elected every three years for
term of six years each. Thus, the term of twelve Senators expires every three years, leaving les
than a majority of Senators to continue into the next Congress. The 1987 Constitution, lik
the 1935 Constitution, requires a majority of Senators to constitute a quorum to do business.
Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is no
a continuing body because less than majority of the Senators continue into the next Congress. Th
consequence is that the Rules of Procedure must be republished by the Senate after every expiry o
the term of twelve Senators.274[47]

The subject was explained with greater lucidity in our Resolution275[48] (On the Motion fo
Reconsideration) in the same case, viz.:

On the nature of the Senate as a continuing body, this Court sees fit to issue a clarification
Certainly, there is no debate that the Senate as an institution is continuing, as it is not dissolve
as an entity with each national election or change in the composition of its members. However, i
the conduct of its day-to-day business the Senate of each Congress acts separately an
independently of the Senate of the Congress before it. The Rules of the Senate itself confirms thi
when it states:
RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in th
same status.

All pending matters and proceedings shall terminate upon the expiration of one (1
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 bills and eve
legislative investigations, of the Senate of a particular Congress are considered terminated upo
the expiration of that Congress and it is merely optional on the Senate of the succeeding Congres
to take up such unfinished matters, not in the same status, but as if presented for the first time
The logic and practicality of such a rule is readily apparent considering that the Senate of th
succeeding Congress (which will typically have a different composition as that of the previou
Congress) should not be bound by the acts and deliberations of the Senate of which they had n
part. If the Senate is a continuing body even with respect to the conduct of its business, the
pending matters will not be deemed terminated with the expiration of one Congress but will, as
matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of th
conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates mai
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 preceding election
shall begin their term of office, the President may endorse the Rules to the appropriate committe
for amendment or revision.
274[47]

Id. at 297-298.

275[48]

Dated September 4, 2008.

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130

The Rules may also be amended by means of a motion which should be presented at least one da
before its consideration, and the vote of the majority of the Senators present in the session shall b
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 remain in forc
until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition of th
Senate after an election and the possibility of the amendment or revision of the Rules at the start o
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 to be vali
from the date of their adoption until they are amended or repealed. Such language i
conspicuously absent from the Rules. The Rules simply state (t)hese Rules shall take effect seve
(7) days after publication in two (2) newspapers of general circulation. The latter does no
explicitly provide for the continued effectivity of such rules until they are amended or repealed. I
view of the difference in the language of the two sets of Senate rules, it cannot be presumed tha
the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the nex
Congress may easily adopt different rules for its legislative inquiries which come within the rul
on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducte
in accordance with the duly published rules of procedure is categorical. It is incumbent upon th
Senate to publish the rules for its legislative inquiries in each Congress or otherwise make th
published rules clearly state that the same shall be effective in subsequent Congresses or until the
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 effective eve
in the next Congress, it could have easily adopted the same language it had used in its main rule
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 Senates internet web page.276[49]
The Court does not agree. The absence of any
amendment to the rules cannot justify the Senates
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.
Justice Carpios 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
276[49]

TSN, Oral Arguments, March 4, 2008, (G.R. No. 179275), pp. 413-414.

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131
pamphlet form available at the Senate, is not
sufficient under the Taada 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 Taada is
mandatory to comply with the due process
requirement because the Rules of Procedure
put a persons 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. 8792,277[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.278[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.279[52] It
277[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.
278[51]

MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 15, 2007, 536 SCRA
408. (Emphasis supplied.)
279[52]

2
3

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:
a
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
b
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):
a
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
b
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

131

132
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
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
relevant circumstances.

132

133
COMMITTEE ON FOREIGN
AFFAIRS, G.R. No. 184849,
February 13, 2009
This is a Petition for Certiorari and Prohibition280[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, 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 77 th 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.281
[2]
Senator Santiago emphatically defended respondent
280[1]

Rollo, pp. 3-21.

281[2]

Id. at 28.
133

134
Committees 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 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 Comment282[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. 283
[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 Taada
v. Cuenco,284[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 Senates action.
Second. Even if it is within our power to inquire into
the validity of the exercise of jurisdiction over the petitioners
282[3]

Id. at 126-137.

283[4]
284[5]

See Morrero v. Bocar, 37 O.G. 445.


100 Phil. 101 (1957).
134

135
by the Senate Foreign Relations Committee, we are
convinced that respondent Committee has acted within the
proper sphere of its authority.
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 Committees
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.285[6] The Moscow incident would reflect on
our countrys compliance with the obligations required of
state-parties under these conventions. Thus, the respondent
285[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, recordkeeping 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.)

135

136
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).
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 Santiagos verbal
command to Balajadia to arrest petitioners, the Philippine
Senate issued a formal written Order286[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.287[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.288[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,
286[7]

Rollo, pp. 138-139.


Publication was made in the October 31, 2008 issues of the Manila Daily
Bulletin and the Malaya.
288[9]
Rollo, p. 143.
287[8]

136

137
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
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 Socalled 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.
137

138
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter 289 dated September 27, 2005
respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited in order to afford said officials ample time and opportunity to study
and prepare for the various issues so that they may better enlighten the Senate
Committee on its investigation.
Senate President Drilon, however, wrote 290 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);

Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995; Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).
289
290

Annex B, id. at 52.


Annex C, id. at 53.

138

139
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);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on


Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department


heads are covered by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive
privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or


higher and such other officers who in the judgment of the Chief of the PNP are
covered by the executive privilege;

Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and

Such other officers as may be determined by the President.


SECTION 3. Appearance of Other Public Officials Before Congress. All public
officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
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
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:
139

140

Before proceeding to resolve the issue of the constitutionality of E.O. 464,


ascertainment of whether the requisites for a valid exercise of the Courts 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.291
Invoking this Courts ruling in National Economic Protectionism
Association v. Ongpin292 and Valmonte v. Philippine Charity Sweepstakes Office,293
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. 464.294
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,295 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.
I
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,296 a case decided in 1950 under that Constitution, the Court
already recognized that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous
purchase of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the controversy,
was called to testify thereon by the Senate. On account of his refusal to answer the
questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates 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
291
292
293
294
295
296

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.
G.R. No. 67752, April 10, 1989, 171 SCRA 657.
G.R. No. 78716, September 22, 1987 (res).
Rollo (G.R. No. 169777), p. 117.
Supra note 39 at 136.
87 Phil. 29 (1950).

140

141
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.297 . . . (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. 298 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,299 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 Houses duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.
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
297
298
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).
Id. at 46.
G.R. 89914, Nov. 20, 1991, 203 SCRA 767.

141

142
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.300
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.
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.301 (Emphasis and underscoring supplied)

300
301

Supra.
Supra note 82 at 189.

142

143
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.
2
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:
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
peoples 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.302 (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 legislatures power of inquiry.
3
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
302

G.R. No. 74930, February 13, 1989, 170 SCRA 256.

143

144

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
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.

144

145
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
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)
145

146

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 Peoples Republic of China.
In connection with this NBN Project, various Resolutions were introduced in the
Senate.
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-togovernment 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,303[6] (b) whether or not she directed him to prioritize it, 304[7]
and (c) whether or not she directed him to approve.305[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 petitioners
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
303[6]

Transcript of the September 26, 2007 Hearing of the respondent Committees,


pp.91-92.
304[7]
Id., pp. 114-115.
305[8]

Id., pp. 276-277.

146

147
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?
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 Peoples 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 petitioners 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.

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148
Respondent Committees found petitioners 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
Committees 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.306[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
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
306[9]

See Letter dated January 30, 2008.


148

149
officials on the countrys 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. Ermita307[10] and
United States v. Reynolds.308[11] Lastly, he argues that he is precluded
from disclosing communications made to him in official
confidence under Section 7309[12] of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for
Public Officials and Employees, and Section 24310[13] (e) of Rule 130
of the Rules of Court.
Respondent Committees assert the contrary. They argue that
(1) petitioners 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 petitioners 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 decisionmaking and (ii) information, which might
impair our diplomatic as well as economic
relations with the Peoples 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

307[10]
308[11]
309

310[13]

488 SCRA 1 (2006).


345 U.S. 1 (1953).
[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.

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.
149

150
foreign investors and lenders in the
Philippines x 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?

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.
Ermita311[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 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

311[18]

Supra.
150

151
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.312[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 Courts pronouncement in Senate v. Ermita313[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.
I
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 change.314[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.
312[19]
313[20]
314[21]

Ibid.
Ibid.
Arnault v. Nazareno, 87 Phil 32 (1950)
151

152

The power extends even to executive officials and the only


way for them to be exempted is through a valid claim of executive
privilege.315[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 Act316[23] and the Federal Advisory Committee Act,317
[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 Ermitas Letter dated
November 15, 2007 limits its bases for the claim of executive
privilege to Senate v. Ermita, Almonte v. Vasquez,318[25] and Chavez
v. PEA.319[26] There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,320[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.321[28] In
United States v. Nixon,322[29] the U.S. Court recognized a great
public interest in preserving the confidentiality of conversations
that take place in the Presidents performance of his official
duties. It thus considered presidential communications as
presumptively privileged. Apparently, the presumption is
founded on the Presidents 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 and making
decisions and to do so in a way many would be unwilling to
express except privately.
In In Re: Sealed Case,323[30] the U.S. Court of Appeals delved
deeper. It ruled that there are two (2) kinds of executive privilege;
315[22]

Senate v. Ermita, p. 58.


5 U.S. C. 552
317[24]
51 U.S. C. app.
318[25]
433 Phil. 506 (2002).
319[26]
G.R. No. 130716, December 9, 1998, (360 SCRA 132 ).
320[27]
Supra.
321[28]
CRS Report for Congress, Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments at p. 2.
322[29]
418 U.S. 683.
323[30]
In Re: Sealed Case No. 96-3124, June 17, 1997.
316[23]

152

153
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 decisionmaking 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
Presidents 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 ones324[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-inchief 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.325[32]
Majority of the above jurisprudence have found their way in
our jurisdiction. In Chavez v. PCGG326[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,327[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 the President, such as the area of military and foreign relations.
Under our Constitution, the President is the repository of the
commander-in-chief,328[40] appointing,329[41] pardoning,330[42] and
diplomatic331[43] powers. Consistent with the doctrine of separation
of powers, the information relating to these powers may enjoy
greater confidentiality than others.
324[31]

Id.
CRS Report for Congress, Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments at pp. 18-19.
326[38]
360 Phil. 133 (1998).
327[39]
Supra.
328[40]
Section 18, Article VII.
329[41]
Section 16, Article VII.
330[42]
Section 19, Article VII.
331[43]
Section 20 and 21, Article VII.
325[32]

153

154

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.

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.

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.332[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 Peoples 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.333[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 Arroyos cabinet. And third, there is no adequate showing
of a compelling need 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

332[44]

CRS Report for Congress, Presidential Claims of Executive Privilege:


History, Law Practice and Recent Developments, supra..
333[45]
Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A
Commentary, 2003 Ed. p. 903.
154

155
immunity from
circumstances.

judicial

process

under

all

The foregoing is consistent with the earlier case of Nixon v.


Sirica,334[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. 335[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. Nixon336[48] that demonstrated, specific need for evidence
in pending criminal trial outweighs the Presidents generalized
interest in confidentiality. However, the present cases 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 Presidents 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 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
petitioners claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern.337[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
334[46]

159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973).
U.S. v. Nixon, 418 U.S. 683 (1974)
336[48]
Supra.
337[50]
Citing Section 7, Article 3 of the Constitution.
335[47]

155

156
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, 338[51] Article 229339[52] of the
Revised Penal Code, Section 3 (k) 340[53] of R.A. No. 3019, and
Section 24(e)341[54] of Rule 130 of the Rules of Court. These are in
addition to what our body of jurisprudence classifies as
confidential342[55] and what our Constitution considers as belonging
to the larger concept of executive privilege. Clearly, there is a
338

[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:
1 To further their private interests, or give undue advantage to anyone; or
2

To prejudice the public interest.

339[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.
340[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.
341

342[55]

[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.

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 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.
156

157
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 peoples right to public information. The
former cannot claim that every legislative inquiry is an exercise of
the peoples 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 executivelegislative 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.343[56] A formal and proper claim of executive
privilege requires a precise and certain reason for preserving their
confidentiality.344[57]
The Letter dated November 17, 2007 of Executive Secretary
Ermita satisfies the requirement. It serves as the formal claim of
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.
343[56]
344[57]

United States v. Reynolds, supra..


Unites States v. Article of Drug, 43 F.R.D. at 190.
157

158

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.345[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 Peoples 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, 346[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. Bautistas
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 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.
345[58]

Senate v. Ermita, supra., p. 63.


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).
158
346[59]

159

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
petitioners 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. 347[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 OSGs
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 Senates 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 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
347[61]

Trancript of the January 30, 2008 proceedings, p. 29.


159

160
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 petitioners
motion for
reconsideration alleging that he had filed the present petition before
this Court and (b) ignored petitioners 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. 348[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 coequal 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 Courts 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 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 selfincrimination;
CAMILO L. SABIO vs. GORDON, G.R. No.
174340, October 17, 2006, 504 SCRA 704
348[63]

Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000,


344 SCRA 519.
160

161

Sandoval-Gutierrez, J.
The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago


introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 349[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. 455.350[6]

On May 9, 2006, Chairman Sabio declined the invitation because of


prior commitment.351[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 Order352[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.

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.

349[4]

Annex E of the Petition in G.R. No. 174318.


Annex F of the Petition in G.R. No. 174318.
351[7]
Annex G of the Petition in G.R. No. 174318.
352[13]
Annex D of the petition in G.R. No. 174318.
350[6]

161

162
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


jurisdictions long before it reached our shores
Daugherty,353[15] cited in Arnault v. Nazareno.354[16]
American courts considered the power of inquiry as
to legislate.

recognized in foreign
through McGrain v.
In those earlier days,
inherent in the power

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 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. 355[18] Then came the 1987
Constitution incorporating the present Article VI, Section 12. What was
353[15]

273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927).


No. L- 3820, 87 Phil. 29 (1950).
355[18]
Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22.
162
354[16]

163
therefore implicit under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987 Constitutions.356[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.357[20]

It can be said that the Congress power of inquiry has gained more
solid existence and expansive construal. The Courts high regard to such
power is rendered more evident in Senate v. Ermita,358[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.359[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.360[23]
PCGG belongs to this class.

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

356[19]

Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003
Ed. at p.737.
357[20]
Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003
Ed. at p.739.
358[21]
G.R. No. 169777, April 20, 2006.
359[22]
Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195.
360[23]
Senate v. Ermita, Id.
163

164
office. In other words, public officers are but the servants of the people,
and not their rulers.361[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. Pea, 362[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 nonaccountability 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 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. Sandiganbayan363[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
361[24]
362[25]

De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.

No. L-77663, April 12, 1988, 159 SCRA 558.

363[26]

193 SCRA 282 (1991).


164

165
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.)
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]).

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166
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.
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.
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167
- HOW LONG CAN THE LEGISLATIVE BODY DETAIN A WITNESS WHO
REFUSES TO ANSWER OR OBEY ITS LAWFUL ORDERS WITHOUT
VIOLATING THE CONSTITUTION?

11. 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.
12. 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.
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.
13. 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.
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168
14. 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, 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
17. 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
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169
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
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
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170
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.
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
18. 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
170

171
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
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.
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172

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.
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
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173
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).
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
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).
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174
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
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
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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.
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
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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 Muoz 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.
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.
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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.
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.
19. 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.
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[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 employeddirectly or indirectly for the benefit, use, or
support of any sect, denomination, or system of religionexcept
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.
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
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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
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 onehalf 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
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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.
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.
20. 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
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21. 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 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;
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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
3. The AO violates the citizens 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 individuals 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 citizens right to privacy.
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
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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 them shall forthwith
be chosen by the vote of a majority of all the
members of both Houses of Congress voting
separately.
Section 5Oath
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Section 6. ResidenceSalary may not
be decreasednot increased until after the
expiration of his termsshall 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 daysthe 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.
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.

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185
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
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;
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186

5. In early hours of 20 January 2001, negotiations for the peaceful and orderly
transfer of power began between petitioners 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 oclock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many
other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality
of her Proclamation as President, I do not wish to be
a factor that will prevent the restoration of unity and
order in our civil society.
It is for this reason that I now leave
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
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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 counteraffidavit 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?
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:
I
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.
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188
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.
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. Estradas 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;
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189
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 Presidents act of leaving the palace on January 20, 2001 confirmed his
resignation. Petitioners 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 reassume 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
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
Arroyos 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 presidents 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 petitioners claim that a non-sitting President
enjoys immunity from suit for criminal acts committed during his incumbency.
V
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190
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.)
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 withthe 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
5
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
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:

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191
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;
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 adinterim 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
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192
was held in SANLAKAS VS. EXECUTIVE SECRETARY, 421 SCRA
656 that members of Congress have the personality to sue if the
Presidents 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
Arroyos issuance of acting appointments while Congress is in session
impairs no power of Congress.
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 stopgap 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
Presidents 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.
Presidents Control over the executive
department; usurpation of legislative
powers and infringement on the
citizens right to privacy

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193
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 citizens 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 citizens 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 Presidents constitutional duty
to ensure that laws are faithfully executed.
2. The said Executive Order No. 420 does not violate the citizens
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 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:
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194
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
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.

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195
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
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
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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 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
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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.
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
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198
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
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
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199
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 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)
4)
5)
6)
7)
8)

LACSON VS. ROQUE, 92 Phil. 456


VILLALUZ VS. ZALDIVAR, 15 SCRA 710
VILLENA VS. SECRETARY OF INTERIOR, 67 Phil. 451
ALAJAR VS. ALBA, 100 Phil. 683
FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757
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)
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200
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.
F a c t s:
The petition seeks to stop the respondents from executing additional debtrelief 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 countrys 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 taxpayers 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.
8. 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
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201
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.
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
TAADA 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
MACAPAGALARROYO,
AS PRESIDENT AND
COMMANDER-IN-CHIEF,
EXECUTIVE
**

Consolidated with six (6) other Petitions

201

202
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,
NIEZ CACHO-OLIVARES
PUBLISHING CO., INC.,

AND
G.R.

TRIBUNE
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:
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
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203
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 peoples 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 economy and sabotaging the peoples 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;

203

204
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 MACAPAGALARROYO, 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;
NOW, THEREFORE, I, GLORIA MACAPAGALARROYO, 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 Presidents 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.364

364

Petition in G.R. No. 171396, p. 5.

204

205
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.365
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.366
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
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.367
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. Beltrans lawyer explained that the warrant, which stemmed
365

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.

366

Petition in G.R. No. 171400, p. 11.

367

Ibid.

205

206
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 Montao, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard Golf
and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio 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
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 Arroyos issuance of PP 1021.
Such contention lacks merit.
206

207
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, 368 so that a declaration thereon would
be of no practical use or value. Generally, courts decline jurisdiction over such
case369 or dismiss it on ground of mootness.
The Court holds that President Arroyos 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
fourth, the case is capable of repetition yet evading review (Albaa 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 Courts
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 publics interest, involving as they do the
peoples 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. 370 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.371 In private suits, standing is governed by the real-parties-in
368

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

369

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.
370
Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
371

Blacks Law Dictionary, 6th Ed. 1991, p. 941.

207

208
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.372 Succinctly put, the plaintiffs
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,373 where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens 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:374 In matter of mere public right, howeverthe people are the
real partiesIt 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 that a public
grievance be remedied. With respect to taxpayers suits, Terr v. Jordan375 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,376 later reaffirmed in Tileston v. Ullman.377 The same Court ruled that
for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct injury as
a result of that action, and it is not sufficient that he has a general interest common
to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v.
Vera,378 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,379 Manila Race Horse Trainers
Association v. De la Fuente,380 Pascual v. Secretary of Public Works381 and AntiChinese League of the Philippines v. Felix.382
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
372
373
374
375
376
377
378
379
380
381
382

Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).


275 Ky 91, 120 SW2d 765 (1938).
19 Wend. 56 (1837).
232 NC 48, 59 SE2d 359 (1950).
302 U.S. 633.
318 U.S. 446.
65 Phil. 56 (1937).
G.R. No. 117, November 7, 1945 (Unreported).
G.R. No. 2947, January 11, 1959 (Unreported).
110 Phil. 331 (1960).
77 Phil. 1012 (1947).

208

209
in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,383 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,384 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.385
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,386 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,387 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,388 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
383

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.
384

L-No. 40004, January 31, 1975, 62 SCRA 275.


385

Taada 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 taxpayers 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;
Osmea 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.
386

387
388

G.R. No. 133250, July 9, 2002, 384 SCRA 152.


G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.
G.R. No. 151445, April 11, 2002, 380 SCRA 739.

209

210
Alyansang Makabayan v. Zamora,389 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;

for taxpayers, there must be a claim of illegal disbursement of public


funds or that the tax measure is unconstitutional;

for voters, there must be a showing of obvious interest in the validity


of the election law in question;

for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and

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 Courts


attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,390 the Court ruled that the status of Kilosbayan as a
peoples 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 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,391 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,392 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,393 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they claim that
the Presidents 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.
389

390
391
392
393

Supra.

G.R. No. 118910, November 16, 1995, 250 SCRA 130.


G.R. No. 132922, April 21, 1998, 289 SCRA 337.
G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
G.R. No. 159085, February 3, 2004, 421 SCRA 656.

210

211
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,394 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 the
people395 but he may be removed from office only in the mode provided by law and
that is by impeachment.396
B. SUBSTANTIVE
I. Review of Factual Bases

The issue of whether the Court may review the factual bases of the
Presidents 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
394

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).
395

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.
396
Ibid., Sec. 2.

211

212
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 Presidents 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 Courts 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.
As to how the Court may inquire into the Presidents exercise of power,
Lansang adopted the test that judicial inquiry can go no further than to satisfy the
Court not that the Presidents 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 Presidents 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 Arroyos exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor Generals 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
212

213

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

The first provision pertains to the Presidents 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,397 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 Offices 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 Presidents 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
Presidents authority to declare a state of rebellion (in Sanlakas) and the authority
397

Supra.

213

214
to proclaim a state of national emergency. While President Arroyos 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 law or regulation is made to depend,
shall be promulgated in proclamations which shall have the
force of an executive order.
President Arroyos 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 States 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, 398 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.399 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,400 including the Philippine National Police401
under the Department of Interior and Local Government.402
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, 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.
398

399
400

Section 1, Article VII of the Constitution.


Section 5, Article VII of the Constitution.
Section 18, Article VII of the Constitution.

401

Section 6, Article XVI of the Constitution.

402

See Republic Act No. 6975.

214

215

Petitioners contention is understandable. A reading of PP 1017 operative


clause shows that it was lifted403 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 Arroyos 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.404
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 Arroyos 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.
Third Provision: Power to Take Over

403

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.

404

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.

215

216
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. 405 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 Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.
A distinction must be drawn between the Presidents 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.
(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.

405

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.

216

217
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 (callingout 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.406 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.407
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.
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.
406

Antieau, Constitutional Construction, 1982, p.21.

407

Cruz, Philippine Political Law, 1998, p. 94.

217

218
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)
9. 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
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219
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
Before one may validly apply for executive clemency (pardon or
amnesty) he MUST ADMIT HAVING COMMITTED THE ACTS WHICH
RESULTED IN HIS IMPRISONMENT.
3)
4)
5)
6)
7)
8)

CRISTOBAL VS. LABRADOR, 71 Phil. 34


PEOPLE VS. JOSE, 75 Phil. 612
5) PELOBELO VS. PALATINO, 72 Phil. 441
PEOPLE VS. PASILAN, 14 SCRA 694
LEGASPI VS. MINISTER, 115 SCRA 418
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.
219

220

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 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.
220

221

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
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
221

222
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.
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
222

223
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 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
223

224
clemency granted by public respondent was "the product of a hocus-pocus
strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly
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 therefrom, may not be traversed in
the courts. (Willoughby on the Constitution of the United States, Vol. 3, p.
1326).

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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,
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

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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
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
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227
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 GovernorGeneral 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
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:

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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
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
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229
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 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 (1st) day of
November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this
Honorable Court, the above-named accuseds (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,
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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.408[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.
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.
408[1]

Annex B of RTC Decision, CA rollo, p. 45.

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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
ROMULO
Representative of the United States
Republic
of America
DATE:
2006__

12-19-06

(Sgd.) ALBERTO G.
Representative of the
of the Philippines
DATE:

December 19,

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.409[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,410[4] brought by Bayan,
one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis-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.
409[3]
410[4]

Rollo, pp. 90-127.


G.R. No. 138570, October 10, 2000, 342 SCRA 449.

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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 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,411[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
411[5]

Supra, note 4.

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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 CaseZablocki Act, within sixty days from ratification.412[6]
The second reason has to do with the relation between the VFA and the RPUS Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed
and duly ratified with the concurrence of both the Philippine Senate and the United
States Senate.
The RP-US Mutual Defense Treaty states:413[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
412[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.
413[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).

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234
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 selfhelp and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.
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
Plenipotentiaries have signed this Treaty.

the

undersigned

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
234

235
(Sgd.)

DIOSDADO

(Sgd.)

DEAN

MACAPAGAL
For the United States of America:
ACHESON
(Sgd.) JOHN FOSTER
DULLES
(Sgd.)

TOM

(Sgd.)

ALEXANDER

CONNALLY
WILEY

414[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:415[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 CaseZablocki 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.416[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.
414[8]
415[9]

Emphasis supplied.
Emphasis supplied.

416[10]

See Letter of Ambassador Thomas C. Hubbard quoted in Bayan, 342 SCRA 449, 491.

235

236

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.
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.417[11]
The rule in international law is that a foreign armed forces allowed to enter
ones 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.418[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 upon
to subjects of another State due to the recognition of extraterritorial immunity
given to such bodies as visiting foreign armed forces.
417[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.
418[12]

See Dieter Fleck, Ed., The HANDBOOK OF THE LAW OF VISITING FORCES , Oxford: 2001.

236

237

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 States 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 MacapagalArroyo, et al.).
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
237

238
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.

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 selfexecuting 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.
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,419[13]
an executive agreement is a treaty within the meaning of that word in
international law and constitutes enforceable domestic law vis--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.
419[13]

Supra, Note 6.

238

239

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.

ExecutiveCongressional Agreements: These are joint agreements of


the President and Congress and need not be submitted to the Senate.

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.
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
239

240
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 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)
2)
3)
4)
5)
6)

LOPEZ VS. ROXAS, 17 SCRA 756


SANTIAGO VS. BAUTISTA, 32 SCRA 188
RADIOWEALTH VS. AGRACADA, 86 Phil. 429
NOBLEJAS VS. TEEHANKEE, 23 SCRA 405
LINA VS. PURISIMA, 82 SCRA 244
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.

240

241
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.
(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:
(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;
241

242
(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 Rulesnot 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;
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:
242

243
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.
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
2
3

Does the private respondent have the personality to


sue or to question the constitutionality of EO 156?
Does the President have the authority to promulgate
EO to promote police power like in this case?
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.
The President is authorized to issue an
executive order provided it complies with the
following requisites:
a. Its
promulgation
must
authorized by the legislature;

be

243

244
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
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
244

245

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

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

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.
Section 8. A judicial and bar Council---compositionChief 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:
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246
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 certification
to this effect signed by the CJ----Any member who took no part or dissentedmust
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 courts omission to specify the offense committed, or the specific
provision of the law violated, is not in derogation of the constitutional requirement
246

247
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 THEREFOR
like the petition raised are factual or there is no reversible error in the
respondents 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
247

248
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 itUnless 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.
[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)
2)
3)
4)

NHC VS. JUCO, 134 SCRA 172


MWSS VS. HERNANDEZ, 143 SCRA 602
QUIMPO VS. TANODBAYAN, December 2, 1986,
PAL VS. CFI, January 8, 1987

146 SCRA

b. Checking function of the CSC


Read:
248

249
1)
2)
3)
4)
5)
6)

DE LOS SANTOS VS. MALLARE, 87 Phil. 289


MEDALLA VS. SAYO, 103 SCRA 587
MATURAN VS. MAGLARA, 113 SCRA 268
DE GUZMAN VS. SUBIDO, 120 SCRA 443
ANZALDO VS. CLAVE, 119 SCRA 353
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
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?
249

250
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
6. NSC vs. NLRC, 168 SCRA 123
g. May government employees be removed without
government reorganization?

cause as a result of a

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 termIn 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.
b.
c.
d.

Deputize law enforcement agencies, including the ASFP..


Register political parties, except religious groups
File complaints for violation of election laws
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
2) SANCHEZ VS. BILIWANG, 114 SCRA 454
b-1. Powers of the COMELEC
1. PANGILINAN VS. COMELEC, NOVEMBER 18, 1993
2. NPC VS. COMELEC, 207 SCRA 1
250

251
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
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 LGUs in
251

252
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
Presidents 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 basisand 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.
2. Exec. Order 249
Residence requirement for local government positions.
TESS DUMPIT-MICHELENA VS. BOADO, ET
AL., 475 SCRA 290
252

253

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.
Tess Dumpit-Michelenas 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
253

254
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:
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.

254

255
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 3rd 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:
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 the 3rd 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
ELEANOR ONDOY,
2008

vs.
COMELEC
&
G.R. No. 180444 , April 8,

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,
255

256
petitioners and other candidates420[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 respondents 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 respondents assumption of office as vice-mayor 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.421[5]
On appeal, the COMELEC En Banc upheld the ruling of the First Division, as
follows:
Respondents 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 Montebons and Ondoys 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.422[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 respondents assumption of office as vice-mayor in
January 2004 interrupted his 2001-2004 term as municipal councilor.
420[4]

Jesus C. Mendoza, Teopisto C. Prosia, Jr., Nicolas Y. Edillon, Ernesto B. Caga,


Albaerto T. Gallarde, and Eugenio M. Arigo.
421[5]
Rollo, p. 34.
422[6]
Id. at 27-28.
256

257

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.
In Lonzanida v. Commission on Elections,423[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.424[8] In Borja, Jr. v. Commission on Elections,425[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.426[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.427[11]
Section 44428[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
423[7]

370 Phil. 625 (1999).


Id. at 636.
425[9]
356 Phil. 467 (1998).
426[10]
Id. at 478.
427[11]
See Borja, Jr. v. Commission on Elections, 356 Phil. 467, 476-477 (1998).
428[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.
257
424[8]

258
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
same time respect the peoples 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.429[13]
(Emphasis added)
Thus, respondents 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.430[14]
429[13]
430[14]

Supra note 7 at 638.


Rollo, p. 26.
258

259
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.
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 petitioners 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 Officers 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 petitioners
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
259

260
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, petitioners service is deemed to have been interrupted; hence,
he is not barred from running for another term.
In a Resolution431[1] dated March 4, 2008, the First Division of the
COMELEC ruled that petitioners 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:
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.432[2]
Petitioners motion for reconsideration was denied by the
COMELEC en banc in a Resolution433[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,
ANNULLING HIS PROCLAMATION.434[4]
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
431[1]

Rollo, pp. 15-23.


Id. at 22.
433[3]
Id. at 24-27.
434[4]
Id. at 8.
432[2]

260

261
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 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 Elections435[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.436[6] Section 43(b) of the Local Government Code provides that
barangay officials are covered by the three-term limit, while Section
43(c)437[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.
435[5]

G.R. No. 127116, April 8, 1997, 271 SCRA 90, 104.

436[6]

Id. at 104-105.
will be the term of the
MR. DAVIDE.

MR. NOLLEDO. One clarificatory question, Madam President. What


office of barangay officials as provided for?
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.
three

Madam President, does this prohibition to serve for more than


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.
MR. DAVIDE.

So that is up to Congress to decide.

Yes.

MR. RODRIGO. I just wanted that clear in the record.

437[7]

As amended by R.A. No. 8524, which took effect on March 11, 1998.
261

262

(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 438[8] held that the rule on the
three-term limit, embodied in the Constitution and the Local Government
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. 439[9]
In Lonzanida v. Commission on Elections,440[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 threeterm limit by a voluntary renunciation of office and at the same time respect
the peoples 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.441[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,
438[8]

G.R. No. 154512, November 12, 2002, 391 SCRA 457.


Id. at 467.
440[10]
G.R. No. 135150, July 28, 1999, 311 SCRA 602, 613.
441[11]
Id. at 611.
439[9]

262

263
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 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
442[12]
voluntary.
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
Encyclopedia443[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.444[14]
An interruption in the service of a term of office, by operation of
law, is exemplified in Montebon v. Commission on Elections.445[15] The
respondent therein, Sesinando F. Potencioso, Jr., was elected and served
three consecutive terms as Municipal Councilor of Tuburan, Cebu in 19982001, 2001-2004, and 2004-2007. However, during his second term, he
succeeded as Vice-Mayor of Tuburan due to the retirement of the ViceMayor pursuant to Section 44 of R.A. No. 7160.446[16] Potenciosos
442[12]

Rollo, pp. 18-19.


Jose Agaton R. Sibal, copyright 1986.
444[14]
Sixth Edition, copyright 1990.
445[15]
G.R. No. 180444, April 9, 2008, 551 SCRA 50.
446[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, vicegovernor, 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
263
443[13]

264
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.447[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.448[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,449[19] respondent
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. Capcos
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. 450[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.451[21] Neither had
he served the full term because he only continued the service, interrupted by
the death, of the deceased mayor.452[22] The vice-mayors assumption of the
mayorship in the event of the vacancy is more a matter of chance than of
design.453[23] Hence, his service in that office should not be counted in the
application of any term limit.454[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
447[17]

Supra note 15.


Id.
449[19]
G.R. No. 133495, September 3, 1998, 295 SCRA 157.
450[20]
Id. at 169.
451[21]
Id. at 170.
452[22]
Id.
453[23]
Id. at 168.
454[24]
Id.
448[18]

264

265
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
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
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),455[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. 455.456[6]
455[4]
456[6]

Annex E of the Petition in G.R. No. 174318.


Annex F of the Petition in G.R. No. 174318.
265

266
On May 9, 2006, Chairman Sabio declined the invitation because of prior
commitment.457[7] At the same time, he invoked Section 4(b) of
E.O. No. 1.

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.
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.458[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. Pea,459[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
457[7]

Annex G of the Petition in G.R. No. 174318.


De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.

458[24]
459[25]

No. L-77663, April 12, 1988, 159 SCRA 558.

266

267
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.
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. Sandiganbayan460[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. . .
Read: 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
460[26]

193 SCRA 282 (1991).


267

268

c. The SANDIGANBAYAN AND TANODBAYAN DECREES


Read:
1) PD's 1486, 1847, 1606, 1607 and 1630
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. COMELEC, G.R.
No. 171812, December 24, 2008.
QUISUMBING, J.
The antecedent facts are as follows:
On November 25, 1997, Loida C. Arabelo,461[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 Treasurers Office. The audit revealed a cash shortage of
P1,023,829.56.462[6] The state auditor also discovered, upon verification from the
461[5]
462[6]

Arabello in some parts of the records.


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 -

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

47,106.14

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

268

269
depository bank, that the entry in Boncalons 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.463[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.464[8]
Graft Investigation Officer (GIO) I Alvin Butch E. Caares recommended
the dismissal of the case since the questioned amounts were already accounted for.
He also said that the erroneous entry of deposit in Boncalons 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 Caares. 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.465[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.466[10] The fallo of the decision reads,
Officer

2,550.00

Overstatement of total of Report of


Cash Disbursement No. 101-9706994
dated 5/30/97

1,644.02

Amount of collection for the months of


June and August 1997 not deposited
Total Audited Accountability as of Nov. 25, 1997
Less: Credits to Accountability
Cash and Valid cash items counted
at the time of the examination
SHORTAGE
(Emphasis ours.)
463[7]

CA rollo, pp. 23-24.

464[8]

Id. at 26.

465[9]

Id. at 18-21.

466[10]

100.33
P 1,023,829.56
P 1,070,935.70

47,106.14
P 1,023,829.56

Rollo, pp. 32-34.

269

270
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
from government service with forfeiture of all benefits and perpetual
disqualification of holding public office is hereby AFFIRMED.
SO ORDERED.467[11]
Aggrieved, Boncalon filed this petition contending that:
I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
UPHOLDING PETITIONERS 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 PETITIONERS 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 PETITIONERS DISMISSAL FROM THE
SERVICE DESPITE THE ABSENCE OF PROOF BUT
RELIANCE MERELY ON PRESUMPTIONS, CONJECTURES
AND INFERENCES THAT ARE MISTAKEN.468[12]
Essentially, the issues for resolution are: (1) Did the Court of Appeals err in
upholding Boncalons 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,469[13] she finally contends that mere absence
of funds is not sufficient proof of conversion, nor is her mere failure to turn over
467[11]

Id. at 36.

468[12]

Id. at 17.

469[13]

G.R. No. 112314, March 28, 2001, 355 SCRA 525, 535.

270

271
the funds at any given time sufficient to make a prima facie case, for 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
Boncalons 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 Boncalons 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 ones side
or the opportunity to seek a reconsideration of the action or ruling complained of. 470
[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, 471[15] October 19,
1998472[16] and December 10, 1998.473[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.
470[14]
471[15]

Casimiro v. Tandog, G.R. No. 146137, June 8, 2005, 459 SCRA 624, 633.
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

472[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

473[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

271

272
The Court acknowledges that indeed, as claimed by petitioner, when auditor
Arabelo made her demand on October 2, 1998 upon the petitioner to restitute
P1,023,829.56474[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
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 petitioners 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.475[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. 476[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.
474[18]

P200,000 was deposited on November 25, 1997, as evidenced by the deposit slip; P819,535.21 was
deposited on December 22, 1997,