ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J.

LOZANOENDRIANO, tioners, - versus -

G.R. No. 187883

Peti

SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, Respondent. x----------------------x LOUIS BAROK C. BIRAOGO, G.R. No. 187910 Petitioner, Present: - versus PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES*, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ. Promulgated: June 16, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

SPEAKER PROSPERO C. NOGRALES, Speaker of the House of Representatives, Congress of the Philippines, Respondent.

RESOLUTION PUNO, C.J.: This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government."[1] Be that as it may, no amount of exigency can make this Court exercise a power where it is not proper. The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress. In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners supplications. While some may interpret petitioners moves as vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume jurisdiction over cases involving constitutional disputes. It is well settled that it is the duty of the judiciary to say what the law is. The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its solemn and sacred
[2]

obligation under the Constitution.[3] This Courts power of review may be awesome, but it is limited to actual cases and controversiesdealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented.[4] The case-or-controversy requirement bans this court from deciding abstract, hypothetical or contingent questions, [5] lest the court give opinions in the nature of advice concerning legislative or executive action.[6] In the illuminating words of the learned Justice Laurel in Angara v. Electoral Commission[7]: Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. An aspect of the case-or-controversy requirement is the requisite of ripeness. In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all.[8] Another approach is the evaluation of the twofold aspect of ripeness: first,the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration.[9] In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.[10] An alternative road to review similarly taken would be to

determine whether an action has already been accomplished or performed by a branch of government before the courts may step in.[11] In the present case, the fitness of petitioners case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court. Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The court resolved the issue thus: More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. It is implicit in the rule of law.[12] Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2)

the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought.[13] In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions.[14] The lack of petitioners personal stake in this case is no more evident than in Lozanos three-page petition that is devoid of any legal or jurisprudential basis. Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayers suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation.[15] It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public interest is involved.[16] While the Court recognizes the potential far-reaching implications of the issue at hand, the possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under the transcendental importance doctrine. The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr.,[17] viz.: x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more

importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." It thus goes to the very essence of representative democracies. xxxx A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.

Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of personal injury to the broader transcendental importance doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.

In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.[18] When warranted by the presence of indispensible minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it. IN VIEW WHEREOF, the petitions are dismissed.

SO ORDERED.

MOLDEX REALTY, INC., Petitioner,

G.R. No. 149719

Present:

QUISUMBING, J., Chairperson,

- versus -

CARPIO, CARPIO MORALES, TINGA, and HOUSING AND LAND USE REGULATORY BOARD, OFFICE OF APPEALS, ADJUDICATION AND LEGAL AFFAIRS, EDITHA U. BARRAMEDA in her capacity as Regional Officer and METROGATE COMPLEX VILLAGE HOMEOWNERS ASSOCIATION, INC., Respondents. June 21, 2007 Promulgated: VELASCO, JR., JJ.

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

DECISION
TINGA, J.:

This is a petition for prohibition and certiorari under Rule 65 of the Rules of Court, seeking the nullification of Resolution No. R-562,

series of 1994, issued by the Housing and Urban Development Coordinating Council (HUDCC), as well as the two issuances and the writ of mandatory injunction issued by public respondent Housing and Land Use Regulatory Board (HLURB) in connection with the implementation of the assailed Resolution.

The factual antecedents are as follows:

Petitioner Moldex Realty, Inc. is a domestic corporation engaged in real estate development. It is the owner-developer of Metrogate Complex Phase I, a subdivision situated in Meycauayan, Marilao, Bulacan. In 1988, the HLURB issued petitioner a License to Sell 696 parcels of land within the subdivision. In 1993, a sufficient number of lot buyers and homeowners in the subdivision formally organized to become the Metrogate Complex Village Homeowners Association (respondent association).

Petitioner claims that since the completion of the subdivision, it had been subsidizing and advancing the payment for the delivery and maintenance of common facilities including the operation of streetlights and the payment of the corresponding electric bills. However, in 2000, petitioner decided to stop paying the electric bills for the streetlights and advised respondent association to assume this obligation. Respondent association objected to petitioners resolution and refused to pay the electric bills. Thus, Meralcodiscontinued its service, prompting respondent association to apply for a preliminary injunction and preliminary mandatory injunction with the HLURB against petitioner.

On 5 April 2001, Editha U. Barrameda, in her capacity as Regional Officer of HLURBs Office of Appeals, Adjudication and Legal Affairs, issued a Resolution granting respondent associations application for injunction. In support of the Resolution, Barrameda cited the relevant provisions of Presidential Decree (PD) Nos. 957 and 1216 and HUDCC Resolution No. R-562, series of 1994.

HUDCC Resolution No. R-562, series of 1994, particularly provides that subdivision owners/developers shall continue to maintain street lights facilities and, unless otherwise stipulated in the contract, pay the bills for electric consumption of the subdivision street lights until the facilities in the project are turned over to the local government until after completion of development in accordance with PD 957, PD 1216 and their implementing rules and regulations.[1]

Petitioner moved for reconsideration but was rebuffed in an Order dated 28 May 2001.[2] After respondent association filed a bond, Barrameda issued a writ of preliminary mandatory injunction dated 28 June 2001 ordering petitioner to assume the obligation of paying the cost of electricity of the streetlights starting from December 2000 until their turn over or donation to the Municipality of Meycauayan.[3]

Petitioner elevated the matter to the Court of Appeals by filing a Petition for Prohibition and Certiorari, praying not only for the reversal of the writ of preliminary mandatory injunction, as well as the Resolution dated 5 April 2001 and the Order dated 28 May 2001, but also for the nullification of HUDCC Resolution No. R-562, series of 1994, on the ground that it is unconstitutional.

During the pendency of the petition before the Court of Appeals, the HUDCC approved Board Resolution No. R-699, series of 2001, entitled Amending the Rules and Regulations Implementing the Subdivision and Condominium Buyers Protective Decree and Other Related Laws.[4]

On 27 August 2001, the Court of Appeals dismissed the petition on the ground that petitioner should have raised the constitutionality of HUDCC Resolution No. R-562, series of 1994, directly to this Court. The appellate court likewise found that no proof was submitted to show Mr. Juanito Maltos authority to execute the requisite verification and certification against non-forum shopping in behalf of petitioner.[5]

Following the Court of Appeals pronouncement that constitutional issues should be raised directly before this Court, petitioner instituted on 21 September 2001 an action for certiorari and prohibition.[6] The petition reiterated the prayer for the reversal of the writ of preliminary mandatory injunction, the Resolution dated 5 April 2001 and the Order dated 28 May 2001, all issued by the HLURB and for the setting aside of HUDCC Resolution No. R-562, series of 1994.

The instant petition is anchored on the following arguments:

1. Resolution No. 526 Series of 1994 issued by the HUDCC is unconstitutional for being a void exercise of legislative power.

2. Public respondent gravely abused its direction in issuing the Mandatory Injunction on the basis of a void regulation (HU[D]CC Resolution No. 526 Series of 1994).

3. Public respondent abused its discretion in not commanding that the obligation to maintain the subdivision including the payment of the streetlight consumption belongs exclusively to private respondents.[7]

In its Comment,[8] respondent association brought up the tardy filing of the instant petition. It contends that the instant petition, which assails the two HLURB issuances dated 5 April 2001 and 28 May 2001, was filed beyond the 60day reglementary period for filing a petition for certiorari under Rule 65 of the Rules of Court. In its opinion, the prior filing of a petition for certiorari with the Court of Appeals did not toll the running of the 60-day period.

The Solicitor General agrees, pointing out that the instant petition, captioned as Petition for Prohibition and Certiorari, does not assail the Decision of the Court of Appeals but the twin issuances and the writ of mandatory injunction issued by the HLURB and, therefore, should have been filed within 60 days from

petitioners receipt on 18 June 2001 of the HLURB Order dated 28 May 2001. It appears that when reckoned from 18 June 2001, the filing of the instant petition would go beyond the 60-day reglementary period.

Petitioner maintains, on the contrary, that it filed a petition for certiorari with the Court of Appeals within the reglementary period, but the same was dismissed by the appellate court and referred to this Court, as it raised a constitutional issue.

When an administrative regulation is attacked for being unconstitutional or invalid, a party may raise its unconstitutionality or invalidity on every occasion that the regulation is being enforced. For the Court to exercise its power of judicial review, the party assailing the regulation must show that the question of constitutionality has been raised at the earliest opportunity.[9] This requisite should not be taken to mean that the question of constitutionality must be raised immediately after the execution of the state action complained of. That the question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised later. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.[10]

In the instant case, petitioner has complied with the requirement that the issue of the constitutionality of the subject HUDCC Resolution must be timely raised. Petitioner had already raised the question of constitutionality in its petition filed with the Court of Appeals. The alleged injury caused to petitioner as

a result of the implementation of the HUDCC Resolution is continuous in nature in that as long as the assailed resolution is effective, petitioner is obliged to pay for the electricity cost of the streetlights. For every occasion that petitioner is directed to comply with the assailed resolution, a new cause of action to question its validity accrues in favor of petitioner. Thus, the instant petition is not timebarred.

The Solicitor General also points out that it is the Regional Trial Court, and not this Court nor the Court of Appeals, which has jurisdiction to take cognizance of this original action for certiorari and prohibition, notwithstanding Section 4, Rule 65[11] of the Rules of Court.

It must be emphasized that this Court does not have exclusive original jurisdiction over petitions assailing the constitutionality of a law or an administrative regulation. InDrilon v. Lim,[12] it was clearly stated that the lower courts also have jurisdiction to resolve the constitutionality at the first instance, thus:

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. x x x Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in 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.[13]

The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation, except in circumstances where the Court believes that resolving the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately affects the social, economic and moral well being of the people. Thus, the Court of Appeals erred in ruling that a question on the constitutionality of a regulation may be brought only to this Court.

The instant petition does not allege circumstances and issues of transcendental importance to the public requiring their prompt and definite resolution and the brushing aside of technicalities of procedure. Neither is the Court convinced that the issues presented in this petition are of such nature that would nudge the lower courts to defer to the higher judgment of this Court. The application of the assailed HUDCC resolution mainly affects the proprietary interests of the parties involved and can hardly be characterized as overriding to the general well-being of the people. Ultimately, the Court is called upon to resolve the question of who bears the obligation of paying electricity cost, a question that the lower courts undoubtedly have the competence to resolve.

However, it is also a well-established rule that a court should not pass upon a constitutional question and decide a law, or an administrative regulation as in the instant case, to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other

ground

upon

which

the

court

may

raise

its judgment, that course will be adopted and the

constitutional question will be left for consideration until such question will be unavoidable.[14] In other words, the Court will not touch the issue of unconstitutionality unless it is the very lis mota of the case.[15]

Apart from the non-observance of the hierarchy of courts principle, a subsequent development occurred which has not only rendered the question of constitutionalityunpivotal but made the resolution of the case itself a pure theoretical exercise. During the pendency of the petition before the Court of Appeals, Board Resolution No. 699, series of 2001, entitled Amending the Rules and Regulations Implementing the Subdivision and Condominium Buyers Protective Decree and Other Related Laws, was passed by the HUDCC. The regulation amended certain design standards for subdivision projects, among which is the proportionate obligation of subdivision homeowners in the payment of the electricity cost of streetlights.[16] The amendatory provision has superseded the provision in HUDCC Resolution No. R-562, series of 1994, directing subdivision developers to shoulder the electricity cost of streetlights. At the time of the filing of the instant petition, the new provision was already in effect. That being the situation, the instant petition has become moot and academic.

One final note. In the main, petitioner is assailing the constitutionality of Resolution No. R-562, series of 1994, issued by the HUDCC. However, the HUDCC, although obviously an indispensable party, was not impleaded either in the instant petition or in the petition before the Court of Appeals. An indispensable party is a party in interest without whom no final determination can be had of an

action, and who shall be joined either as plaintiffs or defendants. The joinder of indispensable parties is mandatory. The presence of indispensable parties is necessary to vest the court with jurisdiction, which is the authority to hear and determine a cause, the right to act in a case. Thus, without the presence of indispensable parties to a suit or proceeding, the judgment of a court cannot attain real finality. The absence of an indispensable parties renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.[17] That is why the case is generally remanded to the court of origin for further proceedings. In this case, however, remand is not feasible because the initial action has to be discarded for failure to observe the hierarchy of courts principle.

WHEREFORE, the instant petition is DISMISSED. Costs against petitioner.

SO ORDERED.

ANTONIO M. SERRANO, Petitioner,

G.R. No. 167614

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, - versus CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, Jr., NACHURA, LEONARDO-DE CASTRO, BRION, and GALLANT MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC., Promulgated: PERALTA, JJ.

Respondents.

March 24, 2009

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DECISION

AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They have woven together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link between cultures, societies and economies.Yet, only recently have we begun to understand not only how much international migration impacts development, but how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-Moon Global Forum on Migration and Development

Brussels, July 10, 2007[1]

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042,[2] to wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract or for three months for every year of the unexpired term, whichever is less (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process.

By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8, 2004 Decision[3] and April 1, 2005 Resolution[4] of the Court of Appeals (CA), which applied the subject clause, entreating this Court to declare the subject clause unconstitutional.

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas Employment Administration (POEA)approved Contract of Employment with the following terms and conditions:
Duration of contract Position Basic monthly salary Hours of work Overtime Vacation leave with pay 12 months Chief Officer US$1,400.00 48.0 hours per week US$700.00 per month 7.00 days per month[5]

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief Officer by the end of April 1998.[6]

Respondents did not deliver on their promise to make petitioner Chief Officer.[7] Hence, petitioner refused to stay on as Second Officer and was repatriated to thePhilippines on May 26, 1998.[8]

Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint[9] against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down as follows:

May 27/31, 1998 (5 days) incl. Leave pay June 01/30, 1998 July 01/31, 1998 August 01/31, 1998 Sept. 01/30, 1998 Oct. 01/31, 1998 Nov. 01/30, 1998 Dec. 01/31, 1998 Jan. 01/31, 1999 Feb. 01/28, 1999 Mar. pay 1/19, 1999 (19 days) incl. leave

US$ 413.90 2,590.00 2,590.00 2,590.00 2,590.00 2,590.00 2,590.00 2,590.00 2,590.00 2,590.00 1,640.00

--------------------------------------------------------------------------------

25,382.23 Amount adjusted to chief mate's salary (March 19/31, 1998 to April 1/30, 1998) + 1,060.50[10]
----------------------------------------------------------------------------------------------

TOTAL CLAIM

US$ 26,442.73[11]

as well as moral and exemplary damages and attorney's fees.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant (petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainants salary for three (3) months of the unexpired portion of the aforesaid contract of employment. The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00),[12] representing the complainants claim for a salary differential. In addition, the respondents are hereby ordered to pay the complainant, jointly and severally, in Philippine Currency, at the exchange rate prevailing at the time of payment, the complainants (petitioner's) claim for attorneys fees equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee under this Decision. The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit. All other claims are hereby DISMISSED. SO ORDERED.[13] (Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of three months only -- rather than the entire unexpired portion of nine months and 23 days of petitioner's employment contract - applying the subject clause. However, the LA applied the salary rate of US$2,590.00, consisting of

petitioner's [b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per month.[14] Respondents appealed[15] to the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was illegally dismissed. Petitioner also appealed[16] to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations Commission[17] that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts.[18] In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment the following: 1. Three (3) months salary $1,400 x 3 2. Salary differential US$4,245.00 3. 10% Attorneys fees TOTAL The other findings are affirmed. SO ORDERED.[19]

US$4,200.00 45.00 424.50 US$4,669.50

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 does not provide for the award of overtime pay, which should be proven to have been actually performed, and for vacation leave pay.[20]

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the subject clause.[21] The NLRC denied the motion.[22] Petitioner filed a Petition for Certiorari[23] with the CA, reiterating the constitutional challenge against the subject clause.[24] After initially dismissing the petition on a technicality, the CA eventually gave due course to it, as directed by this Court in its Resolution dated August 7, 2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner. In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner.[25] His Motion for Reconsideration[26] having been denied by the

CA,[27] petitioner brings his cause to this Court on the following grounds:
I The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the unexpired portion of his contract of employment instead of limiting it to three (3) months II In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to discharge its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme Court, particularly, the constitutional issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and arbitrarily limits payment of the award for back wages of overseas workers to three (3) months.

III Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding from petitioners award the overtime pay and vacation pay provided in his contract since under the contract they form part of his salary.[28]

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he intends to make use of the monetary award for his medical treatment and medication.[29] Required to comment, counsel for petitioner filed a motion, urging the court to allow partial execution of the undisputed monetary award and, at the same time, praying that the constitutional question be resolved.[30]

Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the petition mindful of the extreme importance of the constitutional question raised therein.

On the first and second issues The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal. Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment contract, computed at the monthly rate of US$2,590.00.[31] The Arguments of Petitioner Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed salary package.[32] It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the two groups;[33] and that it defeats Section 18,[34] Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally or overseas.[35] Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of affected OFWs.[36] Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose but to benefit local placement agencies. He marks the statement made by the Solicitor General in his Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its

obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money claims was reduced under Section 10 of R.A. No. 8042. [37] (Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better off than local employers because in cases involving the illegal dismissal of employees, foreign employers are liable for salaries covering a maximum of only three months of the unexpired employment contract while local employers are liable for the full lump-sum salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the amount of backwages they have to give their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers the maximum of three (3) months unpaid salaries notwithstanding the unexpired term of the contract that can be more than three (3) months.[38]

Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments he is entitled to under his fixed-period employment contract.[39] The Arguments of Respondents In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity, which was when he filed an appeal before the NLRC.[40] The Arguments of the Solicitor General

The Solicitor General (OSG)[41] points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon by the parties.[42] Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment, such that their rights to monetary benefits must necessarily be treated differently. The OSG enumerates the essential elements that distinguish OFWs from local workers: first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v. National Labor Relations Commission[43] and Millares v. National Labor Relations Commission,[44] OFWs are contractual employees who can never acquire regular employment status, unlike local workers who are or can become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the differentiated treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision does not violate the equal protection clause nor Section 18, Article II of the Constitution.[45] Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate the solidary liability of placement agencies for this redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions.[46] The Court's Ruling

The Court sustains petitioner on the first and second issues. When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case or controversy involving a conflict of rights susceptible of judicial determination;[47] (2) that the constitutional question is raised by a proper party[48]and at the earliest opportunity;[49] and (3) that the constitutional question is the very lis mota of the case,[50] otherwise the Court will dismiss the case or decide the same on some other ground.[51] Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally aggrieved that the labor tribunals and the CA computed his monetary award based on the salary period of three months only as provided under the subject clause. The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the pleadings before a competent court, such that, if the issue is not raised in the pleadings before that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be considered on appeal.[52] Records disclose that the issue on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial Reconsideration with said labor tribunal,[53] and reiterated in his Petition for Certiorari before the CA.[54] Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial function its function in the present case is limited to determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the

law itself;[55] thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other hand, is vested with the power of judicial review or the power to declare unconstitutional a law or a provision thereof, such as the subject clause.[56] Petitioner's interposition of the constitutional issue before the CA was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its decision. The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his 12-month employment contract, and not just for a period of three months, strikes at the very core of the subject clause. Thus, the stage is all set for the determination of the constitutionality of the subject clause. Does the subject clause violate Section 10, Article III of the Constitution on non-impairment of contracts?

The answer is in the negative. Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive[57] is not tenable. Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation,[58] and cannot affect acts or contracts already perfected;[59]however, as to laws already in existence, their provisions are read into contracts and deemed a part thereof.[60] Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto.

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042.

But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.[61] Police power legislations adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare.[62] Does the subject clause violate Section 1, Article III of the Constitution, and Section 18,

Article II and Section 3, Article XIII on labor as a protected sector?

The answer is in the affirmative. Section 1, Article III of the Constitution guarantees:
No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the law.

Section 18,[63] Article II and Section 3,[64] Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare. To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like circumstances.[65] Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the class.[66]

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which

the challenged classification needs only be shown to be rationally related to serving a legitimate state interest;[67] b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest;[68] and c) strict judicial scrutiny[69] in which a legislative classification which impermissibly interferes with the exercise of a fundamental right[70] or operates to the peculiar disadvantage of a suspect class[71] is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.[72]

Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications[73] based on race[74] or gender[75] but not when the classification is drawn along income categories.[76]

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,[77] the constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the rank-and-file employees of other GFIs had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a suspect classification based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions. We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others.

xxxx

Further, the quest for a better and more equal world calls for the use of equal protection as a tool of effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims equality as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in all phases of national development, further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality. x x x [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.

Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the rational basis test, and the legislative discretion would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Courts solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor. xxxx In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial need for the adjustment . This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all. Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. (Emphasis supplied)

Imbued with the same sense of obligation to afford protection to labor, the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs. Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts of one year or more; Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis--vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts of one year or more As pointed out by petitioner,[78] it was in Marsaman Manning Agency, Inc. v. National Labor Relations Commission[79] (Second Division, 1999) that the Court laid down the following rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words for every year of the unexpired term which follows the words salaries x x x for three months. To follow petitioners thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the law-making body is presumed to know the meaning of the words employed in the statue and to have used them advisedly. Ut res magis valeat quam pereat.[80] (Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded his salaries for the remaining 8 months and 6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10(5). One was Asian Center for Career and Employment System and Services v. National Labor Relations Commission (Second Division, October 1998),[81] which involved an OFW who was awarded a two-year employment contract,but was dismissed after working for one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months salary, this being the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. In the case at bar, the unexpired portion of private respondents employment contract is eight (8) months. Private respondent should therefore be paid his basic salary corresponding to three (3) months or a total of SR3,600.[82]

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third Division, December 1998),[83] which involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed for another 12 months. After serving for one year and seven-and-a-half months, respondent Osdana was illegally dismissed, and the Court awarded her salaries for the entire unexpired portion of four and one-half months of her contract. The Marsaman interpretation of Section 10(5) has since been adopted in the following cases:

Case Title

Contract Period 6 months 9 months

Period of Service 2 months 8 months

Unexpired Period 4 months 4 months

Period Applied in the Computation of the Monetary Award 4 months 4 months

Skippers v. Maguad[84] Bahia Shipping v. Reynaldo Chua [85]

Centennial 9 months Transmarine v. dela Cruz l[86] Talidano v. Falcon[87] Univan v. CA [88] Oriental v. CA [89] PCL v. NLRC[90] Olarte v. Nayona[91] JSS v. Ferrer[92] 12 months 12 months

4 months

5 months

5 months

3 months 3 months

9 months 9 months 10 months more or less 9 months 11 months and 9 days 11 months and 24 days 2 months and 23 days 2 months

3 months 3 months 3 months 3 months 3 months 3 months 2 months and 23 days Unexpired portion

12 months more than 2 months 12 months more than 2 months 12 months 12 months 21 days 16 days 9 months and 7 days 10 months

Pentagon v. 12 months [93] Adelantar Phil. Employ v. Paramio, et al.[94] Flourish Maritime v. Almanzor [95] 12 months

2 years

26 days

23 months and 4 days 1 year, 9 months and 28 days

6 months or 3 months for each year of contract 6 months or 3 months for each year of contract

Athenna 1 year, 10 Manpower v. months and Villanos [96] 28 days

1 month

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category includes OFWs with fixed-period employment contracts of

less than one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of their contract. The second category consists of OFWs with fixedperiod employment contracts of one year or more; in case of illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired portion of their contracts. The disparity in the treatment of these two groups cannot be

discounted. In Skippers, the respondent OFW worked for only 2 months out of his 6month contract, but was awarded his salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who had worked for a longer period of 3 months out of their 12-month contracts before being illegally dismissed were awarded their salaries for only 3 months. To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate of US$1,000.00. Both commenced work on the same day and under the same employer, and were illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser amount. The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,[97] illegally

dismissed OFWs, no matter how long the period of their employment contracts, were entitled to their salaries for the entire unexpired portions of their contracts. The matrix below speaks for itself:
Case Title Contract Period 2 years 2 years 2 years 2 years 2 years 12 months 12 months Period of Service 2 months 7 days 9 months 2 months 5 months 4 months 6 months and 22 days Unexpired Period 22 months 23 months and 23 days 15 months 22 months 19 months 8 months Period Applied in the Computation of the Monetary Award 22 months 23 months and 23 days 15 months 22 months 19 months 8 months

ATCI v. CA, et al.[98] Phil. Integrated v. NLRC[99] JGB v. NLC[100] Agoy v. NLRC[101] EDI v. NLRC, et al.[102] Barros v. NLRC, et al.[103] Philippine Transmarine v. [104] Carilla

5 months and 5 months and 18 days 18 days

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts. The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired

portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired contracts fall short of one year. Among OFWs With Employment Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the accuracy of the Marsaman interpretation. The Court notes that the subject clause or for three (3) months for every year of the unexpired term, whichever is less contains the qualifying phrases every year and unexpired term. By its ordinary meaning, the word term means a limited or definite extent of time.[105] Corollarily, that every year is but part of an unexpired term is significant in many ways: first, the unexpired term must be at least one year, for if it were any shorter, there would be no occasion for such unexpired term to be measured by every year; and second, the original term must be more than one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the determination of when the subject clause for three (3) months for every year of the unexpired term, whichever is less shall apply is not the length of the original contract period as held in Marsaman,[106] but the length of the unexpired portion of the contract period -- the subject clause applies in cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that the original contract period be more than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year

or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only. To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12 months unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion. OFWs vis--vis Local Workers With Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally dismissed OFWs was in place. This uniform system was applicable even to local workers with fixed-term employment.[107] The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of Commerce (1888),[108] to wit:
Article 299. If the contracts between the merchants and their shop clerks and employees should have been made of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from the fulfillment of said contract until the termination of the period agreed upon.

Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the provisions contained in the following articles.

In Reyes v. The Compaia Maritima,[109] the Court applied the foregoing provision to determine the liability of a shipping company for the illegal discharge of its managers prior to the expiration of their fixed-term employment. The Court therein held the shipping company liable for the salaries of its managers for the remainder of their fixed-term employment. There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which provides:
Article 605. If the contracts of the captain and members of the crew with the agent should be for a definite period or voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by malice or manifest or proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,[110] in which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees for the entire unexpired portion of their employment contracts. While Article 605 has remained good law up to the present,[111] Article 299 of the Code of Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit: Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan[112] read the disjunctive "or" in Article 1586 as a conjunctive "and" so as to apply the provision to local workers who are employed for a time certain although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel de France Company.[113] And in bothLemoine and Palomar, the Court adopted the general principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to them by the terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v. Gay[114] held:

The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other employment of the same kind in the same community, for the purpose of reducing the damages resulting from such wrongful discharge. However, while this is the general rule, the burden of showing that he failed to make an effort to secure other employment of a like nature, and that other employment of a like nature was obtainable, is upon the defendant. When an employee is wrongfully discharged under a contract of employment his prima facie damage is the amount which he would be entitled to had he continued in such employment until the termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)[115] (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on fixedterm employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV.[116] Much like Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available to a fixed-term worker who is

illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,[117] the Court carried over the principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal discharge of a local worker whose fixed-period employment contract was entered into in 1952, when the new Civil Code was already in effect.[118]

More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixed-term employment contracts were illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v. Ople,[119] involving seafarers who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission,[120] an OFW who was illegally dismissed prior to the expiration of her fixedperiod employment contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her contract. The Court arrived at the same ruling in Anderson v. National Labor Relations Commission,[121] which involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on the job -- the Court awarded him salaries corresponding to 15 months, the unexpired portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission,[122] a Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations Commission,[123] an OFW whose 12-month contract was illegally cut short in the second month was declared entitled to his salaries for the remaining 10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042,

specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means. What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history.[124] It is akin to the paramount interest of the state[125] for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards,[126] or in maintaining access to information on matters of public concern.[127] In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly serve. The OSG defends the subject clause as a police power measure designed to protect the employment of Filipino seafarers overseas x x x. By limiting the liability to three

months [sic], Filipino seafarers have better chance of getting hired by foreign employers. The limitation also protects the interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in termination pay.[128] The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money are reduced under Section 10 of RA 8042. This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane [129] conditions. (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state interest sought to be served by the subject clause. The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from which the law originated;[130] but the speech makes no reference to the underlying reason for the adoption of the subject clause. That is only natural for none of the 29 provisions in HB 14314 resembles the subject clause. On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:

Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of the complaint, the claim arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be joint and several. Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment payments, if applicable, to satisfy any such compromise or voluntary settlement shall not be more than two (2) months. Any compromise/voluntary agreement in violation of this paragraph shall be null and void. Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the responsible officials to any or all of the following penalties: (1) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (2) Suspension for not more than ninety (90) days; or (3) Dismissal from the service with disqualification to hold any appointive public office for five (5) years. Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims.

A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the transcripts of the Bicameral Conference Committee (Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No. 14314). However, the Court finds no discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of the subject clause. In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause. Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious. Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs.

The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring foreign employers.

Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the solidary liability of their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection.

Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the subject clause from the lone perspective that the clause directly violates state policy on labor under Section 3,[131] Article XIII of the Constitution.

While all the provisions of the 1987 Constitution are presumed selfexecuting,,[132] there are some which this Court has declared not judicially enforceable, Article XIII being one,[133] particularly Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor Relations Commission,[134] has described to be not selfactuating:

Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in the sense that these are automatically acknowledged and observed without need for any enabling legislation. However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to labor" and "security of tenure", when examined in isolation, are facially unqualified, and the broadest interpretation possible suggests a blanket shield in favor of labor against any form of removal regardless of circumstance. This interpretation implies an unimpeachable right to continued employment-a utopian notion, doubtless-but still hardly within the contemplation of the framers. Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure the protection and promotion, not only the rights of the labor sector, but of the employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution. Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable right to stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their enforceability.[135] (Emphasis added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every conceivable violation of so broad a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action and judicial recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working class. And it was in fact consistent with that constitutional agenda that the Court inCentral Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection -- such as the working class or a section thereof -- the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny.

The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause. Article XIII, by itself, without the application of the equal protection clause, has no life or force of its own as elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose.[136]

The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a better chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings of respondent that would indicate that there is an existing governmental purpose for the subject clause, or even just a pretext of one.

The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason that the clause violates not just petitioner's right to equal protection, but also her right to substantive due process under Section 1,[137] Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042.

On the Third Issue

Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his monetary award, because these are fixed benefits that have been stipulated into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work performed in excess of the regular eight hours, and holiday pay is compensation for any work performed on designated rest days and holidays.

By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela Cruz,[138]

However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v. National Labor Relations Commission, to wit:

The rendition of overtime work and the submission of sufficient proof that said was actually performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the basis of 30% of the basic monthly salary. In short, the contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established. In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since the same is given during the actual service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause or for three months for every year of the unexpired term, whichever is less in the 5th paragraph of

Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals areMODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00 per month.

No costs.

SO ORDERED.

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treas; CITY OF CALBAYOG, represented by Mayor Mel Senen S. Sarmiento; and JERRY P. TREAS, in his personal capacity as Taxpayer, Petitioners,

G.R. No. 176951

- versus -

COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; AND MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON,

Respondents.

X- - - - - - - - - - - - - - - - - - - - - - X

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treas; CITY OF CALBAYOG, represented by Mayor Mel Senen S. Sarmiento; and JERRY P. TREAS, in his personal capacity as Taxpayer, Petitioners, versus -

COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; AND MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL,

G.R. No. 177499

Respondents.

X- - - - - - - - - - - - - - - - - - - - - - X

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treas; CITY OF CALBAYOG, represented by Mayor Mel Senen S. Sarmiento; and JERRY P. TREAS, in his personal capacity as Taxpayer, Petitioners,

- versus -

COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; MUNICIPALITY OF EL SALVADOR, PROVINCE OF MISAMIS ORIENTAL; MUNICIPALITY OF NAGA, CEBU; and DEPARTMENT

OF BUDGET AND MANAGEMENT, Respondents. G.R. No. 178056

Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

Promulgated:

February 15, 2011

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

RESOLUTION

BERSAMIN, J.:

For consideration of this Court are the following pleadings:

1. Motion for Reconsideration of the Resolution dated August 24, 2010 dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al.; and

2. Opposition [To the Motion for Reconsideration of the Resolution dated August 24, 2010+.

Meanwhile, respondents also filed on September 20, 2010 a Motion to Set Motion for Reconsideration of the Resolution dated August 24, 2010 for Hearing. This motion was, however, already denied by the Court En Banc.

A brief background

These cases were initiated by the consolidated petitions for prohibition filed by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treas, assailing the constitutionality of the sixteen (16) laws,[1] each converting the municipality covered thereby into a component city (Cityhood Laws), and seeking to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to the subject laws.

In the Decision dated November 18, 2008, the Court En Banc, by a 6-5 vote,[2] granted the petitions and struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6, Article X, and the equal protection clause.

In the Resolution dated March 31, 2009, the Court En Banc, by a 7-5 vote,[3] denied the first motion for reconsideration.

On April 28, 2009, the Court En Banc issued a Resolution, with a vote of 66,[4] which denied the second motion for reconsideration for being a prohibited pleading.

In its June 2, 2009 Resolution, the Court En Banc clarified its April 28, 2009 Resolution in this wise

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of the Rules of Civil Procedure

which provides that: No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. Thus, a decision becomes final and executory after 15 days from receipt of the denial of the first motion for reconsideration.

However, when a motion for leave to file and admit a second motion for reconsideration is granted by the Court, the Court therefore allows the filing of the second motion for reconsideration. In such a case, the second motion for reconsideration is no longer a prohibited pleading.

In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion for reconsideration was no longer a prohibited pleading. However, for lack of the required number of votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.[5]

Then, in another Decision dated December 21, 2009, the Court En Banc, by a vote of 6-4,[6] declared the Cityhood Laws as constitutional.

On August 24, 2010, the Court En Banc, through a Resolution, by a vote of 7-6,[7] resolved the Ad Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009, both filed by petitioners, and the Ad Cautelam Motion for Reconsideration filed by petitioners-in-intervention

Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City, reinstating the November 18, 2008 Decision. Hence, the aforementioned pleadings.

Considering these circumstances where the Court En Banc has twice changed its position on the constitutionality of the 16 Cityhood Laws, and especially taking note of the novelty of the issues involved in these cases, the Motion for Reconsideration of the Resolution dated August 24, 2010 deserves favorable action by this Court on the basis of the following cogent points:

1. The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution.

Article X, Section 10 provides

Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

The tenor of the ponencias of the November 18, 2008 Decision and the August 24, 2010 Resolution is that the exemption clauses in the 16 Cityhood Laws are unconstitutional because they are not written in the Local Government Code

of 1991 (LGC), particularly Section 450 thereof, as amended by Republic Act (R.A.) No. 9009, which took effect on June 30, 2001, viz.

Section 450. Requisites for Creation. a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for at least two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites:

xxxx

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income. (Emphasis supplied)

Prior to the amendment, Section 450 of the LGC required only an average annual income, as constant prices. certified by the Department of Finance, of at least P20,000,000.00 for the last two (2) consecutive years, based on 1991

Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by Senator Aquilino Pimentel, there were 57 bills filed for conversion of 57 municipalities into component cities. During the 11th Congress (June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained as pending bills. Among these 24

were the 16 municipalities that were converted into component cities through the Cityhood Laws.

The rationale for the enactment of R.A. No. 9009 can be gleaned from the sponsorship speech of Senator Pimentel on Senate Bill No. 2157, to wit

Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed amendments that we have introduced to precisely amend the Local Government Code. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the Local Government was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion to the same status. At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no municipalities.

It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the Local Government Code, is fixed at P20 million, be raised to P100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds.

What has been happening, Mr. President, is, the municipalities aspiring to become cities say that they qualify in terms of financial requirements by incorporating the Internal Revenue share of the taxes of the nation on to their regularly generated revenue. Under that requirement, it looks clear to me that practically all municipalities in this country would qualify to become cities.

It is precisely for that reason, therefore, that we are seeking the approval of this Chamber to amend, particularly Section 450 of Republic Act No. 7160, the requisite for the average annual income of a municipality to be converted into a city or cluster of barangays which seek to be converted into a city, raising that revenue requirement from P20 million to P100 million for the last two consecutive years based on 2000 constant prices.[8]

While R.A. No. 9009 was being deliberated upon, Congress was well aware of the pendency of conversion bills of several municipalities, including those covered by the Cityhood Laws, desiring to become component cities which qualified under the P20 million income requirement of the old Section 450 of the LGC. The interpellation of Senate President Franklin Drilon of Senator Pimentel is revealing, thus

THE PRESIDENT. The Chair would like to ask for some clarificatory point. SENATOR PIMENTEL. Yes, Mr. President.

THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard.

We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as

proposed in this bill to those bills which are pending for consideration?

SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill, on the assumption that it is approved, retroact to the bills that are pending in the Senate conversion from municipalities to cities.

THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law tomorrow, that it will apply to those bills which are already approved by the House under the old version of the Local Government Code and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt?

SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect.

THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected.

SENATOR PIMENTEL. These will not be affected, Mr. President.

THE PRESIDENT. Thank you Mr. Chairman.[9]

Clearly, based on the above exchange, Congress intended that those with pending cityhood bills during the 11th Congress would not be covered by the new and higher income requirement of P100 million imposed by R.A. No. 9009. When the LGC was amended by R.A. No. 9009, the amendment carried with it both the letter and the intent of the law, and such were incorporated in the LGC by which the compliance of the Cityhood Laws was gauged.

Notwithstanding that both the 11th and 12th Congress failed to act upon the pending cityhood bills, both the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were carried on until the 13th Congress, when the Cityhood Laws were enacted. The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of R.A. No. 9009.

Even if we were to ignore the above quoted exchange between then Senate President Drilon and Senator Pimentel, it cannot be denied that Congress saw the wisdom of exempting respondent municipalities from complying with the higher income requirement imposed by the amendatory R.A. No. 9009. Indeed, these municipalities have proven themselves viable and capable to become component cities of their respective provinces. It is also acknowledged that they were centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing

tourism spots. In this regard, it is worthy to mention the distinctive traits of each respondent municipality, viz

Batac, Ilocos Norte It is the biggest municipality of the 2nd District of Ilocos Norte, 2nd largest and most progressive town in the province of Ilocos Norte and the natural convergence point for the neighboring towns to transact their commercial ventures and other daily activities. A growing metropolis, Batac is equipped with amenities of modern living like banking institutions, satellite cable systems, telecommunications systems. Adequate roads, markets, hospitals, public transport systems, sports, and entertainment facilities. [Explanatory Note of House Bill No. 5941, introduced by Rep. Imee R. Marcos.]

El Salvador, Misamis Oriental It is located at the center of the Cagayan-Iligan Industrial Corridor and home to a number of industrial companies and corporations. Investment and financial affluence ofEl Salvador is aptly credited to its industrious and preserving people. Thus, it has become the growing investment choice even besting nearby cities and municipalities. It is home to Asia Brewery as distribution port of their product in Mindanao. The Gokongwei Group of Companies is also doing business in the area. So, the conversion is primarily envisioned to spur economic and financial prosperity to this coastal place in North-Western Misamis Oriental. [Explanatory Note of House Bill No. 6003, introduced by Rep. Augusto H. Bacullo.] Cabadbaran, Agusan del Norte It is the largest of the eleven (11) municipalities in the province of Agusan del Norte. It plays strategic importance to the administrative and socio-economic life and development of Agusan del Norte. It is the foremost in terms of trade, commerce, and industry. Hence, the municipality was declared as the new seat and capital of the provincial government of Agusan del Norte

pursuant to Republic Act No. 8811 enacted into law on August 16, 2000. Its conversion will certainly promote, invigorate, and reinforce the economic potential of the province in establishing itself as an agroindustrial center in the Caraga region and accelerate the development of the area. [Explanatory Note of House Bill No. 3094, introduced by Rep. Ma. Angelica Rosedell M. Amante.]

Borongan, Eastern Samar It is the capital town of Eastern Samar and the development of Eastern Samar will depend to a certain degree of its urbanization. It will serve as a catalyst for the modernization and progress of adjacent towns considering the frequent interactions between the populace. [Explanatory Note of House Bill No. 2640, introduced by Rep. Marcelino C. Libanan.]

Lamitan, Basilan Before Basilan City was converted into a separate province, Lamitan was the most progressive part of the city. It has been for centuries the center of commerce and the seat of the Sultanate of the Yakan people of Basilan. The source of its income is agro-industrial and others notably copra, rubber, coffee and host of income generating ventures. As the most progressive town in Basilan, Lamitan continues to be the center of commerce catering to the municipalities of Tuburan, Tipo-Tipo and Sumisip. [Explanatory Note of House Bill No. 5786, introduced by Rep. Gerry A. Salapuddin.]

Catbalogan, Samar It has always been the socio-economic-political capital of the Island of Samar even during the Spanish era. It is the seat of government of the two congressional districts of Samar. Ideally located at the crossroad between Northern and Eastern Samar, Catbalogan also hosts trade and commerce activates among the more prosperous cities of the Visayas like Tacloban City, Cebu Cityand the cities of Bicol region. The numerous banks and telecommunication

facilities showcases the healthy economic environment of the municipality. The preeminent and sustainable economic situation of Catbalogan has further boosted the call of residents for a more vigorous involvement of governance of the municipal government that is inherent in a city government. [Explanatory Note of House Bill No. 2088, introduced by Rep. Catalino V. Figueroa.]

Bogo, Cebu Bogo is very qualified for a city in terms of income, population and area among others. It has been elevated to the Hall of Fame being a five-time winner nationwide in the clean and green program. [Explanatory Note of House Bill No. 3042, introduced by Rep. Clavel A. Martinez.]

Tandag, Surigao del Sur This over 350 year old capital town the province has long sought its conversion into a city that will pave the way not only for its own growth and advancement but also help in the development of its neighboring municipalities and the province as a whole. Furthermore, it can enhance its role as the provinces trade, financial and government center. [Explanatory Note of House Bill No. 5940, introduced by Rep. Prospero A. Pichay, Jr.]

Bayugan, Agusan del Sur It is a first class municipality and the biggest in terms of population in the entire province. It has the most progressive and thickly populated area among the 14 municipalities that comprise the province. Thus, it has become the center for trade and commerce in Agusan del Sur. It has a more developed infrastructure and facilities than other municipalities in the province. [Explanatory Note of House Bill No. 1899, introduced by Rep. Rodolfo Ompong G. Plaza.+

Carcar, Cebu Through the years, Carcar metamorphosed from rural to urban and now boast of its manufacturing industry, agricultural farming, fishing and prawn industry and its thousands of large and small commercial establishments contributing to the bulk of economic activities in the municipality. Based on consultation with multi-sectoral groups, political and non-government agencies, residents and common folk in Carcar, they expressed their desire for the conversion of the municipality into a component city. [Explanatory Note of House Bill No. 3990, introduced by Rep. Eduardo R. Gullas.]

Guihulngan, Negros Oriental Its population is second highest in the province, next only to the provincial capital and higher than Canlaon City and Bais City. Agriculture contributes heavily to its economy. There are very good prospects in agricultural production brought about by its favorable climate. It has also the Tanon Strait that provides a good fishing ground for its numerous fishermen. Its potential to grow commercially is certain. Its strategic location brought about by its existing linkage networks and the major transportation corridors traversing the municipality has established Guihulngan as the center of commerce and trade in this part of Negros Oriental with the first congressional district as its immediate area of influence. Moreover, it has beautiful tourist spots that are being availed of by local and foreign tourists. [Explanatory Note of House Bill No. 3628, introduced by Rep. Jacinto V. Paras.]

Tayabas, Quezon It flourished and expanded into an important politico-cultural center in [the] Tagalog region. For 131 years (11791910), it served as the cabecera of the province which originally carried the cabeceras own name, Tayabas. The locality is rich in culture, heritage and trade. It was at the outset one of the more active centers of coordination and delivery of basic, regular and diverse goods and

services within the first district of Quezon Province. [Explanatory Note of House Bill No. 3348, introduced by Rep. Rafael P. Nantes.]

Tabuk, Kalinga It not only serves as the main hub of commerce and trade, but also the cultural center of the rich customs and traditions of the different municipalities in the province. For the past several years, the income of Tabuk has been steadily increasing, which is an indication that its economy is likewise progressively growing. [Explanatory Note of House Bill No. 3068, introduced by Rep. Laurence P. Wacnang.]

Available information on Baybay, Leyte; Mati, Davao Oriental; and Naga, Cebu shows their economic viability, thus:

Covering an area of 46,050 hectares, Baybay [Leyte] is composed of 92 barangays, 23 of which are in the poblacion. The remaining 69 are rural barangays. Baybay City is classified as a first class city. It is situated on the western coast of the province of Leyte. It has a Type 4 climate, which is generally wet. Its topography is generally mountainous in the eastern portion as it slopes down west towards the shore line. Generally an agricultural city, the common means of livelihood are farming and fishing. Some are engaged in hunting and in forestall activities. The most common crops grown are rice, corn, root crops, fruits, and vegetables. Industries operating include the Specialty Products Manufacturing, Inc. and the Visayan Oil Mill. Various cottage industries can also be found in the city such as bamboo and rattan craft, ceramics, dress-making, fiber craft, food preservation, mat weaving, metal craft, fine Philippine furniture manufacturing and other related activities. Baybay has great potential as a tourist destination, especially for tennis players. It is not only rich in biodiversity and history, but it also houses the campus of the Visayas State University (formerly the

Leyte State University/Visayas State College of Agriculture/Visayas Agricultural College/Baybay National Agricultural School/Baybay Agricultural High School and the Jungle Valley Park.) Likewise, it has river systems fit for river cruising, numerous caves for spelunking, forests, beaches, and marine treasures. This richness, coupled with the friendly Baybayanos, will be an element of a successful tourism program. Considering the role of tourism in development, Baybay City intends to harness its tourism potential. (<http://en.wikipedia.org/wiki/Baybay City> visited September 19, 2008)

Mati [Davao Oriental] is located on the eastern part of the island of Mindanao. It is one hundred sixty-five (165) kilometers away from Davao City, a one and a half-hour drive from Tagum City. Visitors can travel from Davao City through the Madaum diversion road, which is shorter than taking the Davao-Tagum highway. Travels by air and sea are possible, with the existence of an airport and seaport. Mati boasts of being the coconut capital of Mindanao if not the whole country. A large portion of its fertile land is planted to coconuts, and a significant number of its population is largely dependent on it. Other agricultural crops such as mango, banana, corn, coffee and cacao are also being cultivated, as well as the famous Menzi pomelo and Valencia oranges. Mati has a long stretch of shoreline and one can find beaches of pure, powder-like white sand. A number of resorts have been developed and are now open to serve both local and international tourists. Some of these resorts are situated along the coast of Pujada Bay and the Pacific Ocean. Along the western coast of the bay lies Mt. Hamiguitan, the home of the pygmy forest, where bonsai plants and trees grow, some of which are believed to be a hundred years old or more. On its peak is a lake, called Tinagong Dagat, or hidden sea, so covered by dense vegetation a climber has to hike trails for hours to reach it. The mountain is also host to rare species of flora and fauna, thus becoming a wildlife sanctuary for these

life forms. (<http://mati.wetpain.com/?t=anon> accessed on September 19, 2008.)

Mati is abundant with nickel, chromite, and copper. Louie Rabat, Chamber President of the Davao Oriental Eastern Chamber of Commerce and Industry, emphasized the big potential of the mining industry in the province of Davao Oriental. As such, he strongly recommends Mati as the mining hub in the Region. (<http://www.pia.gov.ph/default.asp?m=12&sec=reader&rp=1&fi=p08 0115.htm&no.=9&date, accessed on September 19, 2008)

Naga [Cebu]: Historical BackgroundIn the early times, the place now known as Naga was full of huge trees locally called as Narra. The first settlers referred to this place as Narra, derived from the huge trees, which later simply became Naga. Considered as one of the oldest settlements in the Province of Cebu, Naga became a municipality on June 12, 1829. The municipality has gone through a series of classifications as its economic development has undergone changes and growth. The tranquil farming and fishing villages of the natives were agitated as the Spaniards came and discovered coal in the uplands. Coal was the first export of the municipality, as the Spaniards mined and sent it to Spain. The mining industry triggered the industrial development of Naga. As the years progressed, manufacturing and other industries followed, making Naga one of the industrialized municipalities in the Province of Cebu.

Class of Municipality Province Distance from Cebu City

1st class Cebu 22 kms.

Number of Barangays No. of Registered Voters Total No. of Precincts Ann. Income

28 44,643 as of May 14, 2007 237 (as of May 14, 2007) (as of Dec. 31, 2006) Php112,219,718.35 Agricultural, Industrial, AgroIndustrial, Mining Product

(<http://www.nagacebu.com/index.php?option=com.content&view=art icle id=53:naga-facts-and-figures&catid=51:naga-facts-andfigures&Itemid=75> visited September 19, 2008)

The enactment of the Cityhood Laws is an exercise by Congress of its legislative power. Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them.[10] The Constitution, as the expression of the will of the people in their original, sovereign, and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general, and comprehensive. The legislative body possesses plenary powers for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects, and extends to matters of general concern or common interest.[11]

Without doubt, the LGC is a creation of Congress through its law-making powers. Congress has the power to alter or modify it as it did when it enacted R.A. No. 9009. Such power of amendment of laws was again exercised when Congress enacted the Cityhood Laws. When Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic viability for the creation of local government unitsincome, population, and land area. Congress deemed it fit to modify the income requirement with respect to the conversion of municipalities into component cities when it enacted R.A. No. 9009, imposing an amount of P100 million, computed only from locally-generated sources. However, Congress deemed it wiser to exempt respondent municipalities from such a belatedly imposed modified income requirement in order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside development and autonomy, especially accounting for these municipalities as engines for economic growth in their respective provinces.

Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood Laws amended R.A. No. 9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself. For this reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained and stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in the LGC.

2. The Cityhood Laws do not violate Section 6, Article X and the equal protection clause of the Constitution.

Both the November 18, 2008 Decision and the August 24, 2010 Resolution impress that the Cityhood Laws violate the equal protection clause enshrined in the Constitution. Further, it was also ruled that Section 6, Article X was violated because the Cityhood Laws infringed on the just share that petitioner and petitioners-in-intervention shall receive from the national taxes (IRA) to be automatically released to them.

Upon more profound reflection and deliberation, we declare that there was valid classification, and the Cityhood Laws do not violate the equal protection clause.

As this Court has ruled, the equal protection clause of the 1987 Constitution permits a valid classification, provided that it: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.[12]

The petitioners argue that there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills, such that the mere pendency of a cityhood bill in

the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. This contention misses the point.

It should be recalled from the above quoted portions of the interpellation by Senate President Drilon of Senator Pimentel that the purpose of the enactment of R.A. No 9009 was merely to stop the mad rush of municipalities wanting to be converted into cities and the apprehension that before long the country will be a country of cities and without municipalities. It should be pointed out that the imposition of the P100 million average annual income requirement for the creation of component cities was arbitrarily made. To be sure, there was no evidence or empirical data, such as inflation rates, to support the choice of this amount. The imposition of a very high income requirement of P100 million, increased from P20 million, was simply to make it extremely difficult for municipalities to become component cities. And to highlight such arbitrariness and the absurdity of the situation created thereby, R.A. No. 9009 has, in effect, placed component cities at a higher standing than highly urbanized cities under Section 452 of the LGC, to wit

Section 452. Highly Urbanized Cities. (a) Cities with a minimum population of two hundred thousand (200,000) inhabitants, as certified by the National Statistics Office, and with the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer, shall be classified as highly urbanized cities.

(b) Cities which do not meet above requirements shall be considered component cities of the province in which they are geographically located. (Emphasis supplied)

The P100 million income requirement imposed by R.A. No. 9009, being an arbitrary amount, cannot be conclusively said to be the only amount sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions

commensurate with the size of its population, per Section 7[13] of the LGC. It was imposed merely because it is difficult to comply with. While it could be argued that P100 million, being more than P20 million, could, of course, provide the essential government facilities, services, and special functions vis--vis the population of a municipality wanting to become a component city, it cannot be said that the minimum amount of P20 million would be insufficient. This is evident from the existing cities whose income, up to now, do not comply with the P100 million income requirement, some of which have lower than the P20 million average annual income. Consider the list[14] below

CITY

AVERAGE ANNUAL INCOME 5,291,522.10 6,714,651.77 9,713,120.00

1. Marawi City 2. Palayan City 3. Sipalay City

4. Canlaon City 5. Himamaylan City 6. Isabela City 7. Munoz City 8. Dapitan City 9. Tangub City 10. Bayawan City 11. Island Garden City of Samal 12. Tanjay City 13. Tabaco City 14. Oroquieta City 15. Ligao City 16. Sorsogon City 17. Maasin City 18. Escalante City 19. Iriga City 20. Gapan City 21. Candon City 22. Gingoog City 23. Masbate City 24. Passi City 25. Calbayog City 26. Calapan City 27. Cadiz City

13,552,493.79 15,808,530.00 16,811,246.79 19,693,358.61 20,529,181.08 20,943,810.04 22,943,810.04 23,034,731.83 23,723,612.44 24,152,853.71 24,279,966.51 28,326,745.86 30,403,324.59 30,572,113.65 32,113,970.00 32,757,871.44 34,254,986.47 36,327,705.86 37,327,705.86 39,454,508.28 40,314,620.00 40,943,128.73 41,870,239.21 43,827,060.00

28. Alaminos City 29. Bais City 30. San Carlos City 31. Silay City 32. Bislig City 33. Tacurong City 34. Talisay City (Negros Occidental) 35. Kabankalan City 36. Malaybalay City 37. La Carlota City 38. Vigan City 39. Balanga City 40. Sagay City 41. Cavite City 42. Koronadal City 43. Cotabato City 44. Toledo City 45. San Jose City 46. Danao City 47. Bago City 48. Valencia City 49. Victorias City 50. Cauayan City 51. Santiago City

44,352,501.00 44, 646,826.48 46,306,129.13 47,351,730.00 47,360,716.24 49,026,281.56 52,609,790.00 53,560,580.00 54,423,408.55 54,760,290.00 56,831,797.19 61,556,700.49 64,266,350.00 64,566,079.05 66,231,717.19 66,302,114.52 70,157,331.12 70,309,233.43 72,621,955.30 74,305,000.00 74,557,298.92 75,757,298.92 82,949,135.46 83,816,025.89

52. Roxas City 53. Dipolog City 54. Trece Martires City 55. Talisay City (Cebu) 56. Ozamis city 57. Surigao City 58. Panabo City 59. Digos City

85,397,830.00 85,503,262.85 87,413,786.64 87,964,972.97 89,054,056.12 89,960,971.33 91,425,301.39 92,647,699.13

The undeniable fact that these cities remain viable as component cities of their respective provinces emphasizes the arbitrariness of the amount of P100 million as the new income requirement for the conversion of municipalities into component cities. This arbitrariness can also be clearly gleaned from the respective distinctive traits and level of economic development of the individual respondent municipalities as above submitted.

Verily, the determination of the existence of substantial distinction with respect to respondent municipalities does not simply lie on the mere pendency of their cityhood bills during the 11th Congress. This Court sees the bigger picture. The existence of substantial distinction with respect to respondent municipalities covered by the Cityhood Laws is measured by the purpose of the law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), thus

SECTION 2. Declaration of Policy.(a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities and resources. The process of decentralization shall proceed from the National Government to the local government units.

Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the States partners in accelerating economic growth and development in the provincial regions, which is the very thrust of the LGC, manifested by the pendency of their cityhood bills during the 11th Congress and their relentless pursuit for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the 11th Congress, and such condition continues to exist.

Petitioners in these cases complain about the purported reduction of their just share in the IRA. To be sure, petitioners are entitled to a just share, not a specific amount. But the feared reduction proved to be false when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased. Consider the table[15]below

CITY

CY 2006 IRA (Before Implementation of Sixteen [16] Cityhood Laws)

CY 2008 IRA (Actual Release After Implementation of Sixteen [16] Cityhood Laws) 242,193,156.00 388,871,770.00 388,840,062.00 361,019,211.00 252,587,779.00 485,653,769.00 277,120,828.00 631,864,977.00 347,207,725.00 277,532,458.00 412,506,278.00 203,072,932.00 266,537,785.00 239,696,441.00 211,449,720.00 327,401,672.00 260,515,711.00 204,140,940.00 563,679,572.00 241,363,845.00

Bais Batangas Bayawan Cadiz Calapan Calbayog Cauayan Gen. Santos Gingoog Himamaylan Iloilo Iriga Legaspi Ligao Oroquieta Pagadian San Carlos San Fernando Santiago Silay

219,338,056.00 334,371,984.00 353,150,158.00 329,491,285.00 227,772,199.00 438,603,378.00 250,477,157.00 518,388,557.00 314,425,637.00 248,154,381.00 358,394,268.00 183,132,036.00 235,314,016.00 215,608,112.00 191,803,213.00 292,788,255.00 239,524,249.00 182,320,356.00 508,326,072.00 216,372,314.00

Surigao Tacurong Tagaytay Tarlac Tangub Urdaneta Victorias Zamboanga

233,968,119.00 179,795,271.00 130,159,136.00 348,186,756.00 162,248,610.00 187,721,031.00 176,367,959.00 918,013,016.00

260,708,071.00 197,880,665.00 152,445,295.00 405,611,581.00 180,640,621.00 207,129,386.00 194,162,687.00 1,009,972,704.00

What these petitioner cities were stating as a reduction of their respective IRA shares was based on a computation of what they would receive if respondent municipalities were not to become component cities at all. Of course, that would mean a bigger amount to which they have staked their claim. After considering these, it all boils down to money and how much more they would receive if respondent municipalities remain as municipalities and not share in the 23% fixed IRA from the national government for cities.

Moreover, the debates in the Senate on R.A. No. 9009, should prove enlightening:

SENATOR SOTTO. Mr. President, we just want to be enlightened again on the previous qualification and the present one being proposed. Before there were three

SENATOR PIMENTEL. There are three requisites for a municipality to become a city. Let us start with the finance. SENATOR SOTTO. Will the distinguished sponsor please refresh us? I used to be the chairman of the Committee on Local Government, but the new job that was given to me by the Senate has erased completely my memory as far as the Local Government Code is concerned.

SENATOR PIMENTEL. Yes, Mr. President, with pleasure. There are three requirements. One is financial.

SENATOR SOTTO. All right. It used to be P20 million.

SENATOR PIMENTEL. It is P20 million. Now we are raising it to P100 million of locally generated funds.

SENATOR SOTTO. In other words, the P20 million before includes the IRA.

SENATOR PIMENTEL. No, Mr. President.

SENATOR SOTTO. It should not have been included?

SENATOR PIMENTEL. The internal revenue share should never have been included. That was not the intention when we first crafted the Local Government Code. The financial capacity was supposed to be demonstrated by the municipality wishing to become a city by its own

effort, meaning to say, it should not rely on the internal revenue share that comes from the government. Unfortunately, I think what happened in past conversions of municipalities into cities was, the Department of Budget and Management, along with the Department of Finance, had included the internal revenue share as a part of the municipality, demonstration that they are now financially capable and can measure up to the requirement of the Local Government Code of having a revenue of at least P20 million.

SENATOR SOTTO. I am glad that the sponsor, Mr. President, has spread that into the Record because otherwise, if he did not mention the Department of Finance and the Department of Budget and Management, then I would have been blamed for the misinterpretation. But anyway, the gentleman is correct. That was the interpretation given to us during the hearings.

So now, from P20 million, we make it P100 million from locally generated income as far as population is concerned.

SENATOR PIMENTEL. As far as population is concerned, there will be no change, Mr. President. Still 150,000.

SENATOR SOTTO. Still 150,000?

SENATOR PIMENTEL. Yes.

SENATOR SOTTO. And then the land area?

SENATOR PIMENTEL. As to the land area, there is no change; it is still 100 square kilometers.

SENATOR SOTTO. But before it was either/or?

SENATOR PIMENTEL. That is correct. As long as it has one of the three requirements, basically, as long as it meets the financial requirement, then it may meet the territorial requirement or the population requirement.

SENATOR SOTTO. So, it remains or?

SENATOR PIMENTEL. We are now changing it into AND.

SENATOR SOTTO. AND?

SENATOR PIMENTEL. Yes.

SENATOR SOTTO. I see.

SENATOR PIMENTEL. That is the proposal, Mr. President. In other words

SENATOR SOTTO. Does the gentleman not think there will no longer be any municipality that will qualify, Mr. President?

SENATOR PIMENTEL. There may still be municipalities which can qualify, but it will take a little time. They will have to produce more babies. I do not knowexpand their territories, whatever, by reclamation or otherwise. But the whole proposal is geared towards making it difficult for municipalities to convert into cities.

On the other hand, I would like to advert to the fact that in the amendments that we are proposing for the entire Local Government Code, we are also raising the internal revenue share of the municipalities.

SENATOR SOTTO. I see.

SENATOR PIMENTEL. So that, more or less, hindi naman sila dehado in this particular instance.

SENATOR SOTTO. Well, then, because of that information, Mr. President, I throw my full support behind the measure.

Thank you, Mr. President.

SENATOR PIMENTEL. Thank you very much, Mr. President. (Emphasis supplied)[16]

From the foregoing, the justness in the act of Congress in enacting the Cityhood Laws becomes obvious, especially considering that 33 municipalities were converted into component cities almost immediately prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement of R.A. No. 9009, acknowledging the privilege that they have already given to those newlyconverted component cities, which prior to the enactment of R.A. No. 9009, were undeniably in the same footing or class as the respondent municipalities. Congress merely recognized the capacity and readiness of respondent municipalities to become component cities of their respective provinces.

Petitioners complain of the projects that they would not be able to pursue and the expenditures that they would not be able to meet, but totally ignored the respondent municipalities obligations arising from the contracts they have already entered into, the employees that they have already hired, and the projects that they have already initiated and completed as component cities. Petitioners have completely overlooked the need of respondent municipalities to become effective vehicles intending to accelerate economic growth in the countryside. It is like the elder siblings wanting to kill the newlyborns so that their inheritance would not be diminished.

Apropos is the following parable:

There was a landowner who went out at dawn to hire workmen for his vineyard. After reaching an agreement with them for the usual daily wage, he sent them out to his vineyard. He came out about midmorning and saw other men standing around the marketplace without work, so he said to them, You too go along to my vineyard and I will pay you whatever is fair. They went. He came out again around noon and mid-afternoon and did the same. Finally, going out in late afternoon he found still others standing around. To these he said, Why have you been standing here idle all day? No one has hired us, they told him. He said, You go to the vineyard too. When evening came, the owner of the vineyard said to his foreman, Call the workmen and give them their pay, but begin with the last group and end with the first. When those hired late in the afternoon came up they received a full days pay, and when the first group appeared they thought they would get more, yet they received the same daily wage. Thereupon they complained to the owner, This last group did only an hours work, but you have paid them on the same basis as us who have worked a full day in the scorching heat. My friend, he said to one in reply, I do you no injustice. You agreed on the usual wage, did you not? Take your pay and go home. I intend to give this man who was hired last the same pay as you. I am free to do as I please with my money, am I not? Or are you envious because I am generous?[17]

Congress, who holds the power of the purse, in enacting the Cityhood Laws, only sought the well-being of respondent municipalities, having seen their respective capacities to become component cities of their provinces, temporarily stunted by the enactment of R.A. No. 9009. By allowing respondent municipalities to convert into component cities, Congress desired only to uphold

the very purpose of the LGC, i.e., to make the local government units enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals, which is the very mandate of the Constitution.

Finally, we should not be restricted by technical rules of procedure at the expense of the transcendental interest of justice and equity. While it is true that litigation must end, even at the expense of errors in judgment, it is nobler rather for this Court of last resort, as vanguard of truth, to toil in order to dispel apprehensions and doubt, as the following pronouncement of this Court instructs:

The right and power of judicial tribunals to declare whether enactments of the legislature exceed the constitutional limitations and are invalid has always been considered a grave responsibility, as well as a solemn duty. The courts invariably give the most careful consideration to questions involving the interpretation and application of the Constitution, and approach constitutional questions with great deliberation, exercising their power in this respect with the greatest possible caution and even reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state constitution to be in contravention of the Constitution x x x, the case must be so clear to be free from doubt, and the conflict of the statute with the constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful

case will the judiciary pronounce a legislative act to be contrary to the constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its validity.[18]

WHEREFORE, the Motion for Reconsideration of the Resolution dated August 24, 2010, dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al. is GRANTED. The Resolution dated August 24, 2010 is REVERSED and SET ASIDE. The Cityhood Laws Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491are declared CONSTITUTIONAL.

SO ORDERED.

G.R. No. 177721

July 3, 2007

KILOSBAYAN FOUNDATION AND BANTAY KATARUNGAN FOUNDATION, petitioners, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA; SANDIGANBAYAN JUSTICE GREGORY S. ONG,respondents. DECISION AZCUNA, J.: Filed on May 23, 2007 was this petition for certiorari under Rule 65 of the Rules of Court. Petitioners are peoples and/or non-governmental organizations engaged in public and civic causes aimed at protecting the peoples rights to self-governance and justice. Respondent Executive Secretary is the head of the Office of the President and is in charge of releasing presidential appointments including those of Supreme Court Justices. Respondent Gregory S. Ong is allegedly the party whose appointment would fill up the vacancy in this Court. Petitioners allege that: On May 16, 2007, respondent Executive Secretary, in representation of the Office of the President, announced an appointment in favor of respondent Gregory S. Ong as Associate Justice of the Supreme Court to fill up the vacancy created by the retirement on April 28, 2007 of Associate Justice Romeo J. Callejo, Sr. The appointment was reported the following day, May 17, 2007, by the major daily publications. On May 18, 2007, the major daily publications reported that the appointment was "recalled" or "held in abeyance" by Malacaang in view of the question relating to the citizenship of respondent Gregory S. Ong. There is no indication whatever that the appointment has been cancelled by the Office of the President. On May 19, 2007, the major daily publications reported that respondent Executive Secretary stated that the appointment is "still there except that the validation of the issue is being done by the Judicial and Bar Council (JBC)."

Petitioners contend that the appointment extended to respondent Ong through respondent Executive Secretary is patently unconstitutional, arbitrary, whimsical and issued with grave abuse of discretion amounting to lack of jurisdiction. Petitioners claim that respondent Ong is a Chinese citizen, that this fact is plain and incontestable, and that his own birth certificate indicates his Chinese citizenship. Petitioners attached a copy of said birth certificate as Annex "H" to the petition. The birth certificate, petitioners add, reveals that at the time of respondent Ongs birth on May 25, 1953, his father was Chinese and his mother was also Chinese. Petitioners invoke the Constitution: Section 7 (1) of Article VIII of the 1987 Constitution provides that "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." Sec. 2 of Art. IV defines "natural-born citizens as those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine Citizenship."1 Petitioners maintain that even if it were granted that eleven years after respondent Ongs birth his father was finally granted Filipino citizenship by naturalization, that, by itself, would not make respondent Ong a natural-born Filipino citizen. Petitioners further argue that respondent Ongs birth certificate speaks for itself and it states his nationality as "Chinese" at birth. They invoke the Civil Code: Article 410 of the Civil Code provides that "[t]he books making up the civil register and all documents relating thereto x x x shall be prima facie evidence of the facts therein contained." Therefore, the entry in Ongs birth certificate indicating his nationality as Chinese is prima facie evidence of the fact that Ongs citizenship at birth is Chinese. Article 412 of the Civil Code also provides that "[N]o entry in a civil register shall be changed or corrected without a judicial order." Thus, as long as Ongs birth certificate is not changed by a judicial order, the Judicial & Bar Council, as well as the whole world, is bound by what is stated in his birth certificate.2 This birth certificate, petitioners assert, prevails over respondent Ongs new Identification Certificate issued by the Bureau of Immigration dated October 16, 1996, stating that he is a natural-born Filipino and over the

opinion of then Secretary of Justice Teofisto Guingona that he is a naturalborn Filipino. They maintain that the Department of Justice (DOJ) does not have the power or authority to alter entries in a birth certificate; that respondent Ongs old Identification Certificate did not declare that he is a natural-born Filipino; and that respondent Ongs remedy is an action to correct his citizenship as it appears in his birth certificate. Petitioners thereupon pray that a writ of certiorari be issued annulling the appointment issued to respondent Ong as Associate Justice of this Court. Subsequently, on May 24, 2007, petitioners filed an Urgent Motion for the Issuance of a Temporary Restraining Order (TRO), praying that a TRO be issued, in accordance with the Rules of Court, to prevent and restrain respondent Executive Secretary from releasing the appointment of respondent Ong, and to prevent and restrain respondent Ong from assuming the office and discharging the functions of Associate Justice of this Court. The Court required respondents to Comment on the petition. Respondent Executive Secretary accordingly filed his Comment, essentially stating that the appointment of respondent Ong as Associate Justice of this Court on May 16, 2007 was made by the President pursuant to the powers vested in her by Article VIII, Section 9 of the Constitution, thus: SEC. 9. The Members of the Supreme Court and Judges of lower courts 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. Respondent Executive Secretary added that the President appointed respondent Ong from among the list of nominees who were duly screened by and bore the imprimatur of the JBC created under Article VIII, Section 8 of the Constitution. Said respondent further stated: "The appointment, however, was not released, but instead, referred to the JBC for validation of respondent Ongs citizenship."3 To date, however, the JBC has not received the referral. Supporting the Presidents action and respondent Ongs qualifications, respondent Executive Secretary submits that: 1. The President did not gravely abuse her discretion as she appointed a person, duly nominated by the JBC, which passed upon the appointees qualifications.

2. Justice Gregory S. Ong is a natural-born citizen as determined by the Bureau of Immigration and affirmed by the Department of Justice, which have the authority and jurisdiction to make determination on matters of citizenship. 3. Undisputed evidence disclosed that respondent Ong is a natural-born citizen. 4. Petitioners are not entitled to a temporary restraining order.4 Respondent Ong submitted his Comment with Opposition, maintaining that he is a natural-born Filipino citizen; that petitioners have no standing to file the present suit; and that the issue raised ought to be addressed to the JBC as the Constitutional body mandated to review the qualifications of those it recommends to judicial posts. Furthermore, the petitioners in his view failed to include the President who is an indispensable party as the one who extended the appointment. As to his citizenship, respondent Ong traces his ancestral lines to one Maria Santos of Malolos, Bulacan, born on November 25, 1881, who was allegedly a Filipino citizen5 who married Chan Kin, a Chinese citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin died in China, as a result of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a minor; that Juan Santos thereby also became a Filipino citizen;6 that respondent Ongs mother, Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese citizen, who were married in 1927; that, therefore, respondents mother was a Filipino citizen at birth; that Dy Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby becoming a Chinese citizen; that when respondent Ong was eleven years old his father, Eugenio Ong Han Seng, was naturalized, and as a result he, his brothers and sisters, and his mother were included in the naturalization. Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a certification and an identification that he is a natural-born Filipino citizen under Article IV, Sections 1 and 2 of the Constitution, since his mother was a Filipino citizen when he was born. Summarizing, his arguments are as follows: I. PETITIONERS LACK OF STANDING AND INABILITY TO IMPLEAD AN INDISPENSABLE PARTY WHOSE OFFICIAL ACTION IS THE VERY ACT SOUGHT TO BE ANNULLED CONSTITUTE INSUPERABLE LEGAL OBSTACLES TO THE EXERCISE OF JUDICIAL POWER AND SHOULD

PREVENT THIS CASE FROM PROCEEDING FURTHER FOR DETERMINATION ON THE MERITS BY THIS HONORABLE COURT. II. RESPONDENT ONG IS, IN TRUTH AND IN FACT, A NATURAL-BORN CITIZEN OF THE PHILIPPINES, CONSIDERING THAT: A. DY GUIOK SANTOS WAS A FILIPINO CITIZEN AT THE TIME OF HER MARRIAGE TO EUGENIO; and B. HAVING BEEN BORN BEFORE JANUARY 17, 1973 OF A FILIPINO MOTHER AND WHO ELECTED FILIPINO CITIZENSHIP UPON REACHING THE AGE OF MAJORITY, RESPONDENT ONG MEETS THE REQUIREMENTS UNDER ARTICLE IV, SECTIONS 1 AND 2 OF THE 1987 CONSTITUTION. III. THE BIRTH CERTIFICATE OF RESPONDENT ONG AS PRESENTED BY PETITIONERS CAN, IN NO WAY, WITHOUT MORE, ESTABLISH WITH FINALITY THAT HE IS A CHINESE NATIONAL, OR DISPROVE CONCLUSIVELY THAT HE IS, IN FACT, A NATURAL-BORN FILIPINO, DESCENDED FROM "INDIOS." IV. IT IS NOT NECESSARY FOR RESPONDENT ONG TO RESORT TO JUDICIAL ACTION UNDER RULE 108 OF THE RULES OF COURT FOR HIM TO BE ABLE TO CLAIM AND ENJOY HIS RIGHTFUL STATUS AS A NATURAL-BORN FILIPINO. V. THE BUREAU OF IMMIGRATION HAS PREEMPTIVE LEGAL AUTHORITY OR PRIMARY ADMINISTRATIVE JURIDICTION TO MAKE A DETERMINATION AS REGARDS THE CITIZENSHIP OF RESPONDENT ONG, AND UPON SUBSEQUENT CONFIRMATION BY THE SECRETARY OF JUSTICE AS REQUIRED BY THE RULES, ISSUE A DECLARATION (I.E., IDENTIFICATION CERTIFICATE NO. 113878) RECOGNIZING THAT RESPONDENT ONG IS A NATURAL-BORN FILIPINO, THEREBY RENDERING NONEXISTENT ANY CONTITUTIONAL IMPEDIMENT FOR HIM TO ASSUME THE POSITION OF ASSOCIATE JUSTICE OF THE SUPREME COURT.7 Petitioners, in turn, filed a Consolidated Reply, in which they asserted their standing to file this suit on the strength of previous decisions of this Court, e.g., Kilosbayan, Incorporated v. Guingona8 and Kilosbayan, Incorporated v. Morato,9 on the ground that the case is one of transcendental importance. They claim that the Presidents appointment of respondent Ong as Supreme Court Justice violates the Constitution and is, therefore, attended with grave

abuse of discretion amounting to lack or excess of jurisdiction. Finally, they reiterate that respondent Ongs birth certificate, unless corrected by judicial order in non-summary proceedings for the purpose, is binding on all and is prima facie evidence of what it states, namely, that respondent Ong is a Chinese citizen. The alleged naturalization of his father when he was a minor would not make him a natural-born Filipino citizen. The petition has merit. First, as to standing. Petitioners have standing to file the suit simply as peoples organizations and taxpayers since the matter involves an issue of utmost and farreaching Constitutional importance, namely, the qualification nay, the citizenship of a person to be appointed a member of this Court. Standing has been accorded and recognized in similar instances.10 Second, as to having to implead the President as an alleged necessary party. This is not necessary since the suit impleads the Executive Secretary who is the alter ego of the President and he has in fact spoken for her in his Comment. Furthermore, the suit does not seek to stop the President from extending the appointment but only the Executive Secretary from releasing it and respondent Ong from accepting the same. Third, as to the proper forum for litigating the issue of respondent Ongs qualification for memberhip of this Court. This case is a matter of primordial importance involving compliance with a Constitutional mandate. As the body tasked with the determination of the merits of conflicting claims under the Constitution,11 the Court is the proper forum for resolving the issue, even as the JBC has the initial competence to do so. Fourth, as to the principal issue of the case is respondent Ong a natural-born Filipino citizen? On this point, the Court takes judicial notice of the records of respondent Ongs petition to be admitted to the Philippine bar. In his petition to be admitted to the Philippine bar, docketed as B.E. No. 1398-N filed on September 14, 1979, under O.R. No. 8131205 of that date, respondent Ong alleged that he is qualified to be admitted to the Philippine bar because, among others, he is a Filipino citizen; and that he is a Filipino citizen because his father, Eugenio Ong Han Seng, a Chinese citizen, was naturalized in 1964 when he, respondent Ong, was a minor of eleven years and thus he, too, thereby became a Filipino citizen. As part of his evidence, in support of his petition, be submitted his birth certificate and the naturalization papers of his father. His birth

certificate12 states that he was a Chinese citizen at birth and that his mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio Ong Han Seng, was also a Chinese citizen. Specifically, the following appears in the records: PETITION COMES now the undersigned petitioner and to this Honorable Court respectfully states: 1. That he is single/married/widower/widow, Filipino citizen and 26 years of age, having been born on May 25, 1953, at SAN JUAN RIZAL, to spouses Eugenio Ong Han Seng and Dy Guiok Santos who are citizens of the Philippines, as evidenced by the attached copy of his birth certificate marked as Annex A (if born outside of wedlock, state so; or if Filipino citizen other than natural born, state how and when citizenship was acquired and attach the necessary proofs: By Nat. Case #584 of Eugenio Ong Han Seng (Father) See Attached documents Annex B, B-1, B-2, B-3, B-4. xxx VERIFICATION Republic of the Philippines ) City of Manila ) S.S. I, GREGORY SANTOS ONG, after being sworn, depose and state: that I am the petitioner in the foregoing petition; that the same was prepared by me and/or at my instance and that the allegations contained therein are true to my knowledge. (Sgd.) GREGORY SANTOS ONG Affiant SUBSCRIBED AND SWORN to before me this 28th day of August, 1979, City of Manila, Philippines, affiant exhibiting his/her Residence Certificate No. A-___________, issued at ________________, on __________________, 19__.

(Sgd.) Notary Public Until December 31, 1979 PTR No. 3114917 January 19, 1979, Pasig, MM Doc. No. 98; Page No. 10; Book No. VIII; Series of 1979.13 In fact, Emilio R. Rebueno, Deputy Clerk of Court and Bar Confidant, wrote respondent Ong a letter dated October 3, 1979 stating that in connection with his Petition for Admission to the 1979 Bar Examinations, he has to submit: 1) A certified clear copy of his Birth Certificate; and 2) A certification of non-appeal re his citizenship from the Office of the Solicitor General. Respondent Ong complied with these requirements. It was on the basis of these allegations under oath and the submitted evidence of naturalization that this Court allowed respondent Ong to take the oath as a lawyer. It is clear, therefore, that from the records of this Court, respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of his naturalborn status by the Bureau of Immigration and the DOJ cannot amend the final decision of the trial court stating that respondent Ong and his mother were naturalized along with his father. Furthermore, as petitioners correctly submit, no substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. In Labayo-Rowe v. Republic,14 this Court held that: Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted.15

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court.16 The series of events and long string of alleged changes in the nationalities of respondent Ongs ancestors, by various births, marriages and deaths, all entail factual assertions that need to be threshed out in proper judicial proceedings so as to correct the existing records on his birth and citizenship. The chain of evidence would have to show that Dy Guiok Santos, respondent Ongs mother, was a Filipino citizen, contrary to what still appears in the records of this Court. Respondent Ong has the burden of proving in court his alleged ancestral tree as well as his citizenship under the time-line of three Constitutions.17 Until this is done, respondent Ong cannot accept an appointment to this Court as that would be a violation of the Constitution. For this reason, he can be prevented by injunction from doing so. WHEREFORE, the petition is GRANTED as one of injunction directed against respondent Gregory S. Ong, who is hereby ENJOINED from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship. This Decision is FINAL and IMMEDIATELY EXECUTORY. No costs. SO ORDERED.

[A.M. No. 91-10-160. May 15, 1996]

RE: REQUEST OF JURISCONSULT SAMANODIN L. AMPASO FOR UPGRADING OF HIS POSITION TO SALARY GRADE 31, EQUIVALENT TO ASSOCIATE JUSTICE OF THE SUPREME COURT
SYLLABUS 1. REMEDIAL LAW; CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES; JURISCONSULT; CONSTRUED. Under P.D. 1083, a Jurisconsult in Islamic Law or Muffi is an officer who renders legal opinions on any question relating to Muslim law. He assists the Qadi or Judge, by giving him fatwas or legal opinions. The opinions thus rendered shall merely serve to enlighten the court or the parties concerned, who, however are not necessarily bound to follow the same. 2. ID.; ID.; ID.; MUST AT LEAST BE 40 YEARS OLD AT THE TIME OF APPOINTMENT; FAILURE TO COMPLY WITH AGE REQUIREMENT RENDERS APPOINTMENT INVALID. A cursory check by the Office of the Court Administrator into the 201 files of Mr. Ampaso revealed that he was born on January 2, 1952. This information regarding his date of birth was personally supplied by him in his Personal Data Sheet for judges and in the information sheet for membership in the GSIS which he personally filled up and filed on July 1, 1985. On the basis of such data, it is evident that when he took his oath as Jurisconsult on April 10, 1991, he was only 39 years, 3 months and 8 days, and that therefore, he failed to comply with the age requirement as provided under Article 165 of P.D. 1083. The foregoing premises considered, we are constrained to hold that the appointment of Mr. Ampaso as Jurisconsult was legally invalid from the beginning. 3. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. The Senior Deputy Court Administrator found the comment and explanation of Mr. Ampaso attributing to his brother the innocent mis-declaration of his year of birth, to be unacceptable. We hold that Mr. Ampasos claim is nothing but a lame excuse and a mere after-thought. It is very unlikely, improbable and unbecoming that a person aspiring for such a high office would request another to fill up and file such personal data forms. But granting that he did make such request, still, he himself had to sign the forms just the same prior to filing, and in the normal course of things, he should have read the documents before affixing his signature thereto. That he signed it without

reading and/or understanding its contents is not excusable, nor credible. As an aspiring member of the Bench, it was incumbent upon Mr. Ampaso to check and double-check important personal data being supplied through such forms. It is thus no excuse to say that someone else prepared the forms or that his own brother must have forgotten (or was not aware of) his year of birth. 4. ID.; EVIDENCE; UNCERTIFIED LATE REGISTRATION OF BIRTH CERTIFICATE AND AFFIDAVITS, HEARSAY AND SELF-SERVING. The subsequent submission of what purports to be a late-registration birth certificate (uncertified), plus a passport and affidavits of disinterested person attesting to his actual date of birth did not cure the defect. Neither do they constitute adequate proof as to the actual date/year of his birth, since the affidavits are hearsay and self-serving, while passports by their very nature and process of issuance cannot pass as conclusive evidence insofar as the year and date of birth are concerned, since such data are supplied by the passport applicants themselves. Neither would an uncertified late-registration certificate of live birth purportedly issued some thirty-five (35) years after the supposed date of birth.

RESOLUTION
PER CURIAM:

Samanodin L. Ampaso, former Judge of the Sharia Circuit Court in Tubod, Lanao del Norte, was appointed as Jurisconsult in Islamic Law on March 26, 1991 by then President Corazon C. Aquino, and took his oath of office on April 10, 1991. The said position was created by virtue of Section 164, paragraph 2 of P. D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines. Thereafter, on May 2, 1991, the newly appointed Jurisconsult requested this Court for the upgrading of his position to Salary Grade 31, equivalent to an Associate Justice of the Supreme Court, claiming that under P.D. 1083 he is the highest Muslim Judicial Officer of the Philippines. He also submitted a proposed plantilla calling for the creation of 209 staff positions for the Office of the Jurisconsult. Under P.D. 1083, a Jurisconsult in Islamic Law or Muffi is an officer who renders legal opinions on any question relating to Muslim law. He assists the Qadi or Judge, by giving him fatwas or legal opinions. The opinions thus rendered shall merely serve to enlighten the court or the parties concerned, who, however are not necessarily bound to follow the same.

The pertinent provisions of P.D. 1083 are hereinbelow reproduced for ease of reference: Title III. Jurisconsult in Islamic Law Art. 164. Creation of office and appointment. (1) There shall be a Jurisconsult in Islamic Law, who shall be appointed by the President of the Philippines and hold office for a term of seven years, without prejudice to reappointment, unless sooner removed for cause or incapacitated to discharge the duties of his office. (2) The Office of the Jurisconsult shall be under the administrative supervision of the Supreme Court of the Philippines, which shall also fix its permanent station, preferably in the City of Zamboanga. Art. 165. Qualifications. No person shall be appointed Jurisconsult in Islamic Law unless he is a citizen of the Philippines, at least forty years of age, of good moral character and proven integrity, and an eminent scholar in the Quran and Hadith and in Islamic jurisprudence as well as proficient in Arabic. Art. 166. Functions. (1) The Jurisconsult shall, on the written request of any interested party, have the authority to render legal opinions, based on recognized authorities, regarding any question relating to Muslim Law. For this purpose, he may, if he deems it necessary, consult or ask for a consensus of the ulama. (2) The Jurisconsult shall consider and act on every such request unless, in his opinion and for good reason, the question need not be answered. (3) The Office of the Jurisconsult shall keep a compilation and cause the publication of all his legal opinions. Art. 167. Compensation. Until otherwise provided by law, the jurisconsult shall receive an annual compensation of forty-eight thousand pesos which shall not be diminished during his term of office. Art. 168. Office personnel. The Jurisconsult may, in accordance with the Civil Service Law and subject to the approval of the Supreme Court, appoint and fix the compensation of such personnel as may be necessary for the performance of his functions. However, a cursory check by the Office of the Court Administrator into the 201 files of Mr. Ampaso revealed that he was born on January 2, 1952. This information regarding his date of birth was personally supplied by him in his

Personal Data Sheet for judges and in the information sheet for membership in the GSIS which he personally filled up and filed on July 1, 1985. On the basis of such data, it is evident that when he took his oath as Jurisconsult on April 10,1991, he was only 39 years, 3 months and 8 days, and that therefore, he failed to comply with the age requirement as provided under Article 165 of P.D. 1083. Thus, on March 31, 1992, the Court through an en banc resolution required Mr. Ampaso to show cause why he should not be removed from office for failing to fulfill the age requirement at the time he took his oath as Jurisconsult. In his comment, he claimed that his true birthdate is January 2, 1948 and not January 2, 1952 as appearing in his GSIS information sheet and personal data sheet, and that the latter documents were not personally prepared by him but by his brother who inadvertently mis-stated the year of his birth. To support his claim, he submitted various documentary proof, including the original of his passport issued on July 17,1985, and a duplicate copy of his Birth Certificate for Late Registration issued on February 10, 1983. He alleged that the mis-statement in his year of birth was not done in bad faith nor was it intended to cause damage to any party, it having been the result of an honest mistake. Obviously, the issue of the validity of the appointment of Mr. Ampaso as Jurisconsult must first be resolved before determining whether or not his request for upgrading of salary is proper. The resolution of said primordial issue hinges on whether all the requirements for the appointment had been duly complied with or not. The Senior Deputy Court Administrator found the comment and explanation of Mr. Ampaso attributing to his brother the innocent misdeclaration of his year of birth, to be unacceptable. We hold that Mr. Ampasos claim is nothing but a lame excuse and a mere after-thought. It is very unlikely, improbable and unbecoming that a person aspiring for such a high office would request another to fill up and file such personal data forms. But granting that he did make such request, still, he himself had to sign the forms just the same prior to filing, and in the normal course of things, he should have read the documents before affixing his signature thereto. That he signed it without reading and/or understanding its contents is not excusable, nor credible. As an aspiring member of the Bench, it was incumbent upon Mr. Ampaso to check and double-check important personal data being supplied through such forms. It is thus no excuse to say that someone else prepared the forms or that his own brother must have forgotten (or was not aware of)

his year of birth. The subsequent submission of what purports to be a lateregistration birth certificate (uncertified), plus a passport and affidavits of disinterested person attesting to his actual date of birth did not cure the defect. Neither do they constitute adequate proof as to the actual date/year of his birth, since the affidavits are hearsay and self-serving, while passports by their very nature and process of issuance cannot pass as conclusive evidence insofar as the year and date of birth are concerned, since such data are supplied by the passport applicants themselves. Neither would an uncertified lateregistration certificate of live birth purportedly issued some thirty-five (35) years after the supposed date of birth. The foregoing premises considered, we are constrained to hold that the appointment of Mr. Ampaso as Jurisconsult was legally invalid from the beginning. WHEREFORE, premises considered, the Court hereby Resolves to declare NULL and VOID ab initio the appointment of Samanodin Ampaso as Jurisconsult. SO ORDERED.

IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO. Present:

CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: October 12, 2010 x --------------------------------------------------------------------------------------- x

DECISION
PER CURIAM:

This case is concerned with charges that, in preparing a decision for the Court, a designated member plagiarized the works of certain authors and twisted their meanings to support the decision. The Background Facts

Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General. Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army systematically raped them and a number of other women, seizing them and holding them in houses or cells where soldiers repeatedly ravished and abused them. Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by the respondent public officials, requesting assistance in filing claims against the Japanese military officers who established the comfort women stations. But that Department declined, saying that petitioners individual claims had already been fully satisfied under the Peace Treaty between the Philippines and Japan. Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals. On April 28, 2010, the Court rendered judgment dismissing petitioners action. Justice Mariano C. del Castillo wrote the decision for the Court. The Court essentially gave two reasons for its decision: it cannot grant the petition because, first, the Executive Department has the exclusive prerogative under the

Constitution and the law to determine whether to espouse petitioners claim against Japan; and, second, the Philippines is not under any obligation in international law to espouse their claims. On June 9, 2010, petitioners filed a motion for reconsideration of the Courts decision. More than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a supplemental petition detailing plagiarism committed by the court under the second reason it gave for dismissing the petition and that these stolen passages were also twisted to support the courts erroneous conclusions that the Filipino comfort women of World War Two have no further legal remedies. The media gave publicity to Atty. Roques announcement. On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused Justice Del Castillo of manifest intellectual theft and outright plagiarism[1] when he wrote the decision for the Court and of twisting the true intents of the plagiarized sources to suit the arguments of the assailed Judgment.[2] They charged Justice Del Castillo of copying without acknowledgement certain passages from three foreign articles: a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).

Petitioners claim that the integrity of the Courts deliberations in the case has been put into question by Justice Del Castillos fraud. The Court should thus

address and disclose to the public the truth about the manifest intellectual theft and outright plagiarism[3] that resulted in gross prejudice to the petitioners. Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute all sources used in it. He said in the pertinent part:
It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate anothers work as our own. We recall that this ponencia was thrice included in the Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78 footnotes. xxxx As regards the claim of the petitioners that the concepts as contained in the above foreign materials were twisted, the same remains their opinion which we do not necessarily share.[4]

On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief Justice, forinvestigation and recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted.

On August 2, 2010, the Committee directed petitioners to comment on Justice Del Castillos verified letter. When this was done, it set the matter for hearing. In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddles concern, after reading the supplemental motion for reconsideration, was the Courts conclusion that prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot diminish. On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court may have misread the argument [he] made in the article and employed them for cross purposes. Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims of war crimes. On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was an extraordinary act of injustice and a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. The statement said that Justice Del Castillo had a deliberate intention to appropriate the original authors work, and that the Courts decision amounted to an act of intellectual fraud by copying works in order to mislead and deceive.[5] On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the Courts decision were taken from his work, he was given generic reference only in the footnote and in connection

with a citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is not consistent with what he advocated. On August 26, 2010, the Committee heard the parties submissions in the summary manner of administrative investigations. Counsels from both sides were given ample time to address the Committee and submit their evidence. The Committee queried them on these. Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so they could make submissions that their client regarded as sensitive and confidential, involving the drafting process that went into the making of the Courts decision in the Vinuya case. Petitioners counsels vigorously objected and the Committee sustained the objection. After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justices court researcher, whose name need not be mentioned here, explain the research work that went into the making of the decision in the Vinuya case. The Committee granted the request. The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her grievous mistake and grief for having caused an enormous amount of suffering for Justice Del Castillo and his family.[6]

On the other hand, addressing the Committee in reaction to the researchers explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from anothers work. Counsel invoked the Courts ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine,[7] arguing that standards on plagiarism in the academe should apply with more force to the judiciary. After the hearing, the Committee gave the parties ten days to file their respective memoranda. They filed their memoranda in due course. Subsequently after deliberation, the Committee submitted its unanimous findings and recommendations to the Court. The Issues This case presents two issues: 1. Whether or not, in writing the opinion for the Court in

the Vinuya case, Justice Del Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis. 2. Whether or not Justice Del Castillo twisted the works of these authors

to make it appear that such works supported the Courts position in the Vinuya decision. The Courts Rulings

Because of the pending motion for reconsideration in the Vinuya case, the Court like its Committee on Ethics and Ethical Standards will purposely avoid touching the merits of the Courts decision in that case or the soundness or lack of soundness of the position it has so far taken in the same. The Court will deal, not with the essential merit or persuasiveness of the foreign authors works, but how the decision that Justice Del Castillo wrote for the Court appropriated parts of those works and for what purpose the decision employed the same. At its most basic, plagiarism means the theft of another persons language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is to take (ideas, writings, etc.) from (another) and pass them off as ones own.[8] The passing off of the work of another as ones own is thus an indispensable element of plagiarism. The Passages from Tams Petitioners point out that the Vinuya decision lifted passages from Tams book, Enforcing Erga Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the author thought was a mere generic reference. But, although Tams himself may have believed that the footnoting in this case was not an appropriate form of referencing,[9] he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tams work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams article as another source of those ideas.

The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement See Tams, Enforcing Obligations Erga Omnes in International Law (2005) in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own. That it would have been better had Justice Del Castillo used the introductory phrase cited in rather than the phrase See would make a case of mere inadvertent slip in attribution rather than a case of manifest intellectual theft and outright plagiarism. If the Justices citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form. The Passages from Ellis and Criddle-Descent Petitioners also attack the Courts decision for lifting and using as footnotes, without attribution to the author, passages from the published work of Ellis. The Court made the following statement on page 27 of its decision, marked with Footnote 65 at the end:
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law. 65 xxx

Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came almost verbatim from Ellis article,[10] such

passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children shall not be molested in their persons. The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of troop discipline. (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INTL. L. 219, 224). It specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection of their honour. (Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, Affirmation of the Principles of International Law recognized by the Charter of the Nrnberg Tribunal; General Assembly document A/64/Add.1 of 1946; See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the following: CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INTL. COMP. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977). The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946)) The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65. Next, petitioners also point out that the following eight sentences and their accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:
xxx In international law, the term jus cogens (literally, compelling law) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.71 Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain international norms had attained the status of jus cogens,75 the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.
72

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.76 In a commentary accompanying the draft convention, the ILC indicated that the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.77 Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78

Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descents article, A Fiduciary Theory of Jus Cogens.[11] Criddle-

Descents footnotes were carried into the Vinuya decisions own footnotes but no attributions were made to the two authors in those footnotes. The Explanation Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillos researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes. In the old days, the common practice was that after a Justice would have assigned a case for study and report, the researcher would source his materials mostly from available law books and published articles on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up. He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a manual typewriter. This occasion would give him a clear opportunity to attribute the materials used to their authors or sources. With the advent of computers, however, as Justice Del Castillos researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were

relevant to her assignment, she downloaded or copied them into her main manuscript, a smorgasbord plate of materials that she thought she might need. The researchers technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps. Here, Justice Del Castillos researcher did just that. She electronically cut relevant materials from books and journals in the Westlaw website and pasted these to a main manuscript in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program.[12] Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work. Justice Del Castillos researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions. First Finding

The Court adopts the Committees finding that the researchers explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote. For most senior lawyers and judges who are not computer literate, a familiar example similar to the circumstances of the present case would probably help illustrate the likelihood of such an accident happening. If researcher X, for example, happens to be interested in the inalienable character of juridical personality in connection with an assignment and if the book of the learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X would probably show interest in the following passage from that book:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.15 xxx _____________________________ 15 3 Von Tuhr 296; 1 Valverde 291.

Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that Tolentino did not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign authors. When researcher X copies and pastes the above passage and its footnote into a manuscript-in-the-making in his computer, the footnote number would, given the

computer program in use, automatically change and adjust to the footnoting sequence of researcher Xs manuscript. Thus, if the preceding footnote in the manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos footnote would automatically change from the original Footnote 15 to Footnote 24. But then, to be of use in his materials-gathering scheme, researcher X would have to tag the Tolentino passage with a short description of its subject for easy reference. A suitable subject description would be: The inalienable character of juridical personality.23 The footnote mark, 23
From Tolentino,

which researcher X

attaches to the subject tag, serves as reminder to him to attribute the passage in its final form to Tolentino. After the passage has been tagged, it would now appear like this:
The inalienable character of juridical personality.23 xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.24 xxx _____________________________ 23 From Tolentino. 24 3 Von Tuhr 296; 1 Valverde 291.

The tag is of course temporary and would later have to go. It serves but a marker to help researcher X maneuver the passage into the right spot in his final manuscript. The mistake of Justice Del Castillos researcher is that, after the Justice had decided what texts, passages, and citations were to be retained including those from Criddle-Descent and Ellis, and when she was already cleaning up her work

and deleting all subject tags, she unintentionally deleted the footnotes that went with such tagswith disastrous effect. To understand this, in Tolentinos example, the equivalent would be researcher Xs removal during cleanup of the tag, The inalienable character of juridical personality.23, by a simple delete operation, and the unintended removal as well of the accompanying footnote (#23). The erasure of the footnote eliminates the link between the lifted passage and its source, Tolentinos book. Only the following would remain in the manuscript:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43 _____________________________ 43 3 Von Tuhr 296; 1 Valverde 291.

As it happened, the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed. This was what happened in the attributions to Ellis and CriddleDescent. The researcher deleted the subject tags and, accidentally, their accompanying footnotes that served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them was not easily detectable. Petitioners point out, however, that Justice Del Castillos verified letter of July 22, 2010 is inconsistent with his researchers claim that the omissions were

mere errors in attribution. They cite the fact that the Justice did not disclose his researchers error in that letter despite the latters confession regarding her mistake even before the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and sought to whitewash the case.[13] But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely explained that there was every intention to attribute all sources whenever due and that there was never any malicious intent to appropriate anothers work as our own, which as it turns out is a true statement. He recalled how the Court deliberated upon the case more than once, prompting major revisions in the draft of the decision. In the process, (s)ources were re-studied, discussions modified, passages added or deleted. Nothing in the letter suggests a cover-up. Indeed, it did not preclude a researchers inadvertent error. And it is understandable that Justice Del Castillo did not initially disclose his researchers error. He wrote the decision for the Court and was expected to take full responsibility for any lapse arising from its preparation. What is more, the process of drafting a particular decision for the Court is confidential, which explained his initial request to be heard on the matter without the attendance of the other parties. Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly respected professors of international law. The law journals that published their works have exceptional reputations. It did not make sense to intentionally omit attribution to these authors when the decision

cites an abundance of other sources. Citing these authors as the sources of the lifted passages would enhance rather than diminish their informative value. Both Justice Del Castillo and his researcher gain nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure oversight. Petitioners of course insist that intent is not material in committing plagiarism since all that a writer has to do, to avoid the charge, is to enclose lifted portions with quotation marks and acknowledge the sources from which these were taken.[14] Petitioners point out that the Court should apply to this case the ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine.[15] They argue that standards on plagiarism in the academe should apply with more force to the judiciary. But petitioners theory ignores the fact that plagiarism is essentially a form of fraud where intent to deceive is inherent. Their theory provides no room for errors in research, an unrealistic position considering that there is hardly any substantial written work in any field of discipline that is free of any mistake. The theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical explanations. Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the deliberate and knowing presentation of another person's original ideas or creative expressions as one's own.[16] Thus, plagiarism presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own. Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass off anothers work as ones own is not required in

plagiarism. The Court merely affirmed the academic freedom of a university to withdraw a masters degree that a student obtained based on evidence that she misappropriated the work of others, passing them off as her own. This is not the case here since, as already stated, Justice Del Castillo actually imputed the borrowed passages to others.

Second Finding The Court also adopts the Committees finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place. This is best illustrated in the familiar example above. After the deletion of the subject tag and, accidentally, its footnote which connects to the source, the lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43 _____________________________ 43 3 Von Tuhr 296; 1 Valverde 291.

Although the unintended deletion severed the passages link to Tolentino, the passage remains to be attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its footnote reference cancel out

any impression that the passage is a creation of researcher X. It is the same with the passages from Criddle-Descent and Ellis. Because such passages remained attributed by the footnotes to the authors original sources, the omission of attributions to Criddle-Descent and Ellis gave no impression that the passages were the creations of Justice Del Castillo. This wholly negates the idea that he was passing them off as his own thoughts. True the subject passages in this case were reproduced in

the Vinuya decision without placing them in quotation marks. But such passages are much unlike the creative line from Robert Frost,[17] The woods are lovely, dark, and deep, but I have promises to keep, and miles to go before I sleep, and miles to go before I sleep. The passages here consisted of common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm. To paraphrase Bast and Samuels,[18] while the academic publishing model is based on the originality of the writers thesis, the judicial system is based on the doctrine ofstare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from. Third Finding Petitioners allege that the decision twisted the passages from Tams, CriddleDescent, and Ellis. The Court adopts the Committees finding that this is not

so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the Court. To twist means to distort or pervert the meaning of.[19] For example, if one lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose Palma who wrote it did not love his country, then there is twisting or misrepresentation of what the anthems lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors Tams, Criddle-Descent, and Ellis supported the Courts conclusion that the Philippines is not under any obligation in international law to espouse Vinuya et al.s claims. The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo twisted their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens. Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of twisting or misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is reckless and obtuse. No Misconduct

On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.[20] This is not the case here. Justice Del Castillos acts or omissions were not shown to have been impelled by any of such disreputable motives.[21] If the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record.[22] No Inexcusable Negligence Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over his researcher and should not have surrendered the writing of the decision to the latter.[23] But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his researcher, which is contrary to the evidence adduced during the hearing. As his researcher testified, the Justice set the direction that the research and study were to take by discussing the issues with her, setting forth his position on those issues, and reviewing and commenting on the study that she was putting together until he was completely satisfied with it.[24] In every sense, Justice Del Castillo was in control of the writing of the report to the Court, which report eventually became the basis for the decision, and determined its final outcome.

Assigning cases for study and research to a court attorney, the equivalent of a law clerk in the United States Supreme Court, is standard practice in the high courts of all nations. This is dictated by necessity. With about 80 to 100 cases assigned to a Justice in our Court each month, it would be truly senseless for him to do all the studies and research, going to the library, searching the internet, checking footnotes, and watching the punctuations. If he does all these by himself, he would have to allocate at least one to two weeks of work for each case that has been submitted for decision. The wheels of justice in the Supreme Court will grind to a halt under such a proposition. What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in the Vinuya case without, however, having to look over his researchers shoulder as she cleaned up her draft report to ensure that she hit the right computer keys. The Justices researcher was after all competent in the field of assignment given her. She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her schools Law Journal, and placed fourth in the bar examinations when she took it. She earned a masters degree in International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program, which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world. Justice Del Castillo did not exercise bad judgment in assigning the research work in the Vinuya case to her. Can errors in preparing decisions be prevented? Not until computers cease to be operated by human beings who are vulnerable to human errors. They are hypocrites who believe that the courts should be as error-free as they themselves are.

Incidentally, in the course of the submission of petitioners exhibits, the Committee noted that petitioners Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the allegations of plagiarism and misinterpretation, was a mere dummy. The whole of the statement was reproduced but the signatures portion below merely listed the names of 38 faculty members, in solid rows, with the letters Sgd or signed printed beside the names without exception. These included the name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor. Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to present the signed copy within three days of the August 26 hearing.[25] He complied. As it turned out, the original statement was signed by only a minority of the faculty members on the list. The set of signatories that appeared like solid teeth in the dummy turned out to be broken teeth in the original. Since only 37 out of the 81 on the list signed the document, it does not appear to be a statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did not sign the statement, contrary to what the dummy represented. The Committee wondered why the Dean submitted a dummy of the signed document when U.P. has an abundance of copying machines. Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration in relation to that matter. WHEREFORE, in view of all of the above, the Court:

1.

DISMISSES for lack of merit petitioner Vinuya, et al.s charges of

plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo; 2. DIRECTS the Public Information Office to send copies of this

decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses; 3. DIRECTS the Clerk of Court to provide all court attorneys involved

in legal research and reporting with copies of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing computer program especially when the volume of citations and footnoting is substantial; and 4. attributions. Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of petitioners Exhibit J, entitled Restoring Integrity, a statement by the Faculty of the University of the Philippines College of Law for the en bancs consideration in relation to the separate pending matter concerning that supposed Faculty statement. SO ORDERED. Finally, DIRECTS the Clerk of Court to acquire the necessary

software for use by the Court that can prevent future lapses in citations and

RE: PETITION FOR RECOGNITION OF THE EXEMPTION OF THE GOVERNMENT SERVICE INSURANCE SYSTEM FROM PAYMENT OF LEGAL FEES.

A.M. No. 08-2-01-0

Present:

PUNO, C.J., CARPIO, CORONA,

GOVERNMENT SERVICE INSURANCE SYSTEM, Petitioner.

CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ and MENDOZA, JJ.

Promulgated:

February 11, 2010

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

RESOLUTION CORONA, J.:

May the legislature exempt the Government Service Insurance System (GSIS) from legal fees imposed by the Court on government-owned and controlled corporations and local government units? This is the central issue in this administrative matter. The GSIS seeks exemption from the payment of legal fees imposed on government-owned or controlled corporations under Section 22,[1] Rule 141 (Legal Fees) of the Rules of Court. The said provision states:

SEC. 22. Government exempt. The Republic of the Philippines, its agencies and instrumentalities are exempt from paying the legal fees provided in this Rule. Local government corporations andgovernmentowned or controlled corporations with or without independent charter are not exempt from paying such fees.

However, all court actions, criminal or civil, instituted at the instance of the provincial, city or municipal treasurer or assessor under Sec. 280 of the Local Government Code of 1991 shall be exempt from the payment of court and sheriffs fees. (emphasis supplied)

The GSIS anchors its petition on Section 39 of its charter, RA[2] 8291 (The GSIS Act of 1997):

SEC. 39. Exemption from Tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the GSIS shall be preserved and maintained at all times and that contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the GSIS and their employers. Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding any laws to the contrary, the GSIS, its assets, revenues including accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect.

Moreover, these exemptions shall not be affected by subsequent laws to the contrary unless this section is expressly, specifically and categorically revoked or repealed by law and a provision is enacted to substitute or replace the exemption referred to herein as an essential factor to maintain and protect the solvency of the fund, notwithstanding and independently of the guaranty of the national government to secure such solvency or liability.

The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favour of the GSIS. (emphasis supplied)

The GSIS then avers that courts still assess and collect legal fees in actions and proceedings instituted by the GSIS notwithstanding its exemption from taxes, assessments, fees, charges, or duties of all kinds under Section 39. For this reason, the GSIS urges this Court to recognize its exemption from payment of legal fees.

According to the GSIS, the purpose of its exemption is to preserve and maintain the actuarial solvency of its funds and to keep the contribution rates necessary to sustain the benefits provided by RA 8291 as low as possible. Like the terms taxes, assessments, charges, and duties, the term fees is used in the law in its generic and ordinary sense as any form of government imposition. The word fees, defined as charge*s+ fixed by law for services of public officers or for the use of a privilege under control of government, is qualified by the phrase of all kinds.[3] Hence, it includes the legal fees prescribed by this Court under Rule 141. Moreover, no distinction should be made based on the kind of fees imposed on the GSIS or the GSIS ability to pay because the law itself does not distinguish based on those matters.

The GSIS argues that its exemption from the payment of legal fees would not mean that RA 8291 is superior to the Rules of Court. It would merely show deference by the Court to the legislature as a co-equal branch.[4] This deference will recognize the compelling and overriding State interest in the preservation of the actuarial solvency of the GSIS for the benefit of its members.[5]

The GSIS further contends that the right of government workers to social security is an aspect of social justice. The right to social security is also guaranteed under Article 22 of the Universal Declaration of Human Rights and Article 9 of the

International Covenant on Economic, Social and Cultural Rights. The Court has the power to promulgate rules concerning the protection and enforcement of constitutional rights, including the right to social security, but the GSIS is not compelling the Court to promulgate such rules. The GSIS is merely asking the Court to recognize and allow the exercise of the right of the GSIS to seek relief from the courts of justice sans payment of legal fees.[6]

Required to comment on the GSIS petition,[7] the Office of the Solicitor General (OSG) maintains that the petition should be denied.[8] According to the OSG, the issue of the GSIS exemption from legal fees has been resolved by the issuance by then Court Administrator Presbitero J. Velasco, Jr.[9] of OCA[10] Circular No. 93-2004:

TO

ALL JUDGES, CLERKS OF COURT AND COURT PERSONNEL OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, SHARIA CIRCUIT COURTS

SUBJECT

REMINDER ON THE STRICT OBSERVANCE OF ADMINISTRATIVE CIRCULAR NO. 3-98 (Re: Payment of Docket and Filing Fees in Extra-Judicial Foreclosure); SECTION 21, RULE 141 OF THE RULES OF COURT; SECTION 3 OF PRESIDENTIAL DECREE

NO. 385; and ADMINISTRATIVE CIRCULAR NO. 07-99 (Re: Exercise of Utmost Caution, Prudence, and Judiciousness in Issuance of Temporary Restraining Orders and Writs of Preliminary Injunctions)

Pursuant to the Resolution of the Third Division of the Supreme Court dated 05 April 2004 and to give notice to the concern raised by the [GSIS] to expedite extrajudicial foreclosure cases filed in court, we wish to remind all concerned [of] the pertinent provisions of Administrative Circular No. 3-98, to wit:

2. No written request/petition for extrajudicial foreclosure of mortgages, real or chattel, shall be acted upon by the Clerk of Court, as Ex-Officio Sheriff, without the corresponding filing fee having been paid and the receipt thereof attached to the request/petition as provided for in Sec. 7(c), of Rule 141 of the Rules of Court.

3. No certificate of sale shall be issued in favor of the highest bidder until all fees provided for in the aforementioned sections and paragraph 3 of Section 9 (I) of Rule 141 of the Rules of Court shall have been paid. The sheriff shall attach to the records of the case a certified copy of the Official Receipt [O.R.] of the payment of the fees and shall note the O.R. number in the duplicate of the Certificate of Sale attached to the records of the case.

Moreover, to settle any queries as to the status of exemption from payment of docket and legal fees of government entities, Section 21, Rule 141 of the Rules of Court explicitly provides:

SEC. 21. Government exempt. The Republic of the Philippines, its agencies and instrumentalities are exempt from paying the legal fees

provided in this Rule. Local governments andgovernment-owned or controlled corporations with or without independent charters are not exempt from paying such fees.[11]

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xxx

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The OSG contends that there is nothing in Section 39 of RA 8291 that exempts the GSIS from fees imposed by the Court in connection with judicial proceedings. The exemption of the GSIS from taxes, assessments, fees, charges or duties of all kinds is necessarily confined to those that do not involve pleading, practice and procedure. Rule 141 has been promulgated by the Court pursuant to its exclusive rule-making power under Section 5(5), Article VIII of the Constitution. Thus, it may not be amended or repealed by Congress.

On this Courts order,[12] the Office of the Chief Attorney (OCAT) submitted a report and recommendation[13] on the petition of the GSIS and the comment of the OSG thereon. According to the OCAT, the claim of the GSIS for exemption from the payment of legal fees has no legal basis. Read in its proper and full context, Section 39 intends to preserve the actuarial solvency of GSIS funds by exempting the GSIS from government impositions through taxes. Legal fees imposed under Rule 141 are not taxes.

The OCAT further posits that the GSIS could not have been exempted by Congress from the payment of legal fees. Otherwise, Congress would have encroached on the rule-making power of this Court.

According to the OCAT, this is the second time that the GSIS is seeking exemption from paying legal fees.[14] The OCAT also points out that there are other government-owned or controlled corporations and local government units which asked for exemption from paying legal fees citing provisions in their respective charters that are similar to Section 39 of RA 8291.[15] Thus, the OCAT recommends that the petition of GSIS be denied and the issue be settled once and for all for the guidance of the concerned parties. Faced with the differing opinions of the GSIS, the OSG and the OCAT, we now proceed to probe into the heart of this matter: may Congress exempt the GSIS from the payment of legal fees? No.

The GSIS urges the Court to show deference to Congress by recognizing the exemption of the GSIS under Section 39 of RA 8291 from legal fees imposed under Rule 141. Effectively, the GSIS wants this Court to recognize a power of Congress to repeal, amend or modify a rule of procedure promulgated by the Court. However, the Constitution and jurisprudence do not sanction such view.

Rule 141 (on Legal Fees) of the Rules of Court was promulgated by this Court in the exercise of its rule-making powers under Section 5(5), Article VIII of the Constitution:

Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx

(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. xxx xxx x x x (emphasis supplied)

The power to promulgate rules concerning pleading, practice and procedure in all courts is a traditional power of this Court.[16] It necessarily includes the power to address all questions arising from or connected to the implementation of the said rules.

The Rules of Court was promulgated in the exercise of the Courts rulemaking power. It is essentially procedural in nature as it does not create, diminish, increase or modify substantive rights. Corollarily, Rule 141 is basically procedural. It does not create or take away a right but simply operates as a means to implement an existing right. In particular, it functions to regulate the procedure of exercising a right of action and enforcing a cause of action.[17] In particular, it pertains to the procedural requirement of paying the prescribed legal fees in the filing of a pleading or any application that initiates an action or proceeding.[18]

Clearly, therefore, the payment of legal fees under Rule 141 of the Rules of Court is an integral part of the rules promulgated by this Court pursuant to its rule-making power under Section 5(5), Article VIII of the Constitution. In particular, it is part of the rules concerning pleading, practice and procedure in courts. Indeed, payment of legal (or docket) fees is a jurisdictional requirement.[19] It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject-matter or nature of the action.[20] Appellate docket and other lawful fees are required to be paid within the same period for taking an appeal.[21] Payment of docket fees in full within the prescribed period is mandatory for the perfection of an appeal.[22] Without such payment, the

appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory.[23]

An interesting aspect of legal fees is that which relates to indigent or pauper litigants. In proper cases, courts may waive the collection of legal fees. This, the Court has allowed in Section 21, Rule 3 and Section 19, Rule 141 of the Rules of Court in recognition of the right of access to justice by the poor under Section 11, Article III of the Constitution.[24] Mindful that the rule with respect to indigent litigants should not be ironclad as it touches on the right of access to justice by the poor,[25] the Court acknowledged the exemption from legal fees of indigent clients of the Public Attorneys Office under Section 16-D of the Administrative Code of 1987, as amended by RA 9406.[26] This was not an abdication by the Court of its rule-making power but simply a recognition of the limits of that power. In particular, it reflected a keen awareness that, in the exercise of its rule-making power, the Court may not dilute or defeat the right of access to justice of indigent litigants.

The GSIS cannot successfully invoke the right to social security of government employees in support of its petition. It is a corporate entity whose personality is separate and distinct from that of its individual members. The rights of its members are not its rights; its rights, powers and functions pertain to it

solely and are not shared by its members. Its capacity to sue and bring actions under Section 41(g) of RA 8291, the specific power which involves the exemption that it claims in this case, pertains to it and not to its members. Indeed, even the GSIS acknowledges that, in claiming exemption from the payment of legal fees, it is not asking that rules be made to enforce the right to social security of its members but that the Court recognize the alleged right of the GSIS to seek relief from the courts of justice sans payment of legal fees.[27]

However, the alleged right of the GSIS does not exist. The payment of legal fees does not take away the capacity of the GSIS to sue. It simply operates as a means by which that capacity may be implemented.

Since the payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards of this Courts institutional independence, the power to promulgate rules of pleading, practice and procedure is now the Courts exclusive domain. That power is no longer shared by this Court with Congress, much less with the Executive.[28]

Speaking for the Court, then Associate Justice (now Chief Justice) Reynato S. Puno traced the history of the rule-making power of this Court and highlighted its evolution and development in Echegaray v. Secretary of Justice:[29]

Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan, Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 which considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court struck down the law as unconstitutional.

In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these departments would be a clear usurpation of its function, as is the case with the law in question." The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x x x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:

xxx

xxx

xxx

Sec. 5. The Supreme Court shall have the following powers.

xxx

xxx

xxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. 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.

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar.

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:
xxx xxx xxx

Section 5. The Supreme Court shall have the following powers: xxx xxx xxx

(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.

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive.

The separation of powers among the three co-equal branches of our government has erected an impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this Court. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by this Court. Viewed from this perspective, the claim of a legislative grant of exemption from the payment of legal fees under Section 39 of RA 8291 necessarily fails.

Congress could not have carved out an exemption for the GSIS from the payment of legal fees without transgressing another equally important institutional safeguard of the Courts independence fiscal autonomy.[30] Fiscal

autonomy recognizes the power and authority of the Court to levy, assess and collect fees,[31] including legal fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF).[32] The laws which established the JDF and the SAJF[33] expressly declare the identical purpose of these funds to guarantee the independence of the Judiciary as mandated by the Constitution and public policy.[34] Legal fees therefore do not only constitute a vital source of the Courts financial resources but also comprise an essential element of the Courts fiscal independence. Any exemption from the payment of legal fees granted by Congress to government-owned or controlled corporations and local government units will necessarily reduce the JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Courts guaranteed fiscal autonomy and erodes its independence.

WHEREFORE, the petition of the Government Service Insurance System for recognition of its exemption from the payment of legal fees imposed under Section 22 of Rule 141 of the Rules of Court on government-owned or controlled corporations and local government units is hereby DENIED.

The Office of the Court Administrator is hereby directed to promptly issue a circular to inform all courts in the Philippines of the import of this resolution.

SO ORDERED.

G.R. No. 110571 March 10, 1994 FIRST LEPANTO CERAMICS, INC., petitioner, vs. THE COURT OF APPEALS and MARIWASA MANUFACTURING, INC., respondents. Castillo, Laman, Tan & Pantaleon for petitioner. De Borja, Medialdea, Ata, Bello, Guevarra & Serapio for private respondent.

NOCON, J.: Brought to fore in this petition for certiorari and prohibition with application for preliminary injunction is the novel question of where and in what manner appeals from decisions of the Board of Investments (BOI) should be filed. A thorough scrutiny of the conflicting provisions of Batas Pambansa Bilang 129, otherwise known as the "Judiciary Reorganization Act of 1980," Executive Order No. 226, also known as the Omnibus Investments Code of 1987 and Supreme Court Circular No. 1-91 is, thus, called for. Briefly, this question of law arose when BOI, in its decision dated December 10, 1992 in BOI Case No. 92-005 granted petitioner First Lepanto Ceramics, Inc.'s application to amend its BOI certificate of registration by changing the scope of its registered product from "glazed floor tiles" to "ceramic tiles." Eventually, oppositor Mariwasa filed a motion for reconsideration of the said BOI decision while oppositor Fil-Hispano Ceramics, Inc. did not move to reconsider the same nor appeal therefrom. Soon rebuffed in its bid for reconsideration, Mariwasa filed a petition for review with respondent Court of Appeals pursuant to Circular 1-91. Acting on the petition, respondent court required the BOI and petitioner to comment on Mariwasa's petition and to show cause why no injunction should issue. On February 17, 1993, respondent court temporarily restrained the BOI from implementing its decision. This temporary restraining order lapsed by its own terms on March 9, 1993, twenty (20) days after its issuance, without respondent court issuing any preliminary injunction. On February 24, 1993, petitioner filed a "Motion to Dismiss Petition and to Lift Restraining Order" on the ground that respondent court has no appellate jurisdiction over BOI Case No. 92-005, the same being exclusively vested with

the Supreme Court pursuant to Article 82 of the Omnibus Investments Code of 1987. On May 25, 1993, respondent court denied petitioner's motion to dismiss, the dispositive portion of which reads as follows: WHEREFORE, private respondent's motion to dismiss the petition is hereby DENIED, for lack of merit.
Private respondent is hereby given an inextendible period of ten (10) days from receipt 1 hereof within which to file its comment to the petition.

Upon receipt of a copy of the above resolution on June 4, 1993, petitioner decided not to file any motion for reconsideration as the question involved is essentially legal in nature and immediately filed a petition for certiorariand prohibition before this Court. Petitioner posits the view that respondent court acted without or in excess of its jurisdiction in issuing the questioned resolution of May 25, 1993, for the following reasons: I. Respondent court has no jurisdiction to entertain Mariwasa's appeal from the BOI's decision in BOI Case No. 92-005, which has become final.
II. The appellate jurisdiction conferred by statute upon this Honorable Court cannot be 2 amended or superseded by Circular No. 1-91.

Petitioner then concludes that:

III. Mariwasa has lost it right to appeal . . . in this case.
3

Petitioner argues that the Judiciary Reorganization Act of 1980 or Batas Pambansa Bilang 129 and Circular 1-91, "Prescribing the Rules Governing Appeals to the Court of Appeals from a Final Order or Decision of the Court of Tax Appeals and Quasi-Judicial Agencies" cannot be the basis of Mariwasa's appeal to respondent court because the procedure for appeal laid down therein runs contrary to Article 82 of E.O. 226, which provides that appeals from decisions or orders of the BOI shall be filed directly with this Court, to wit: Judicial relief. All orders or decisions of the Board (of Investments) in cases involving the provisions of this Code shall immediately be executory. No appeal from the order or decision of the Board by the party adversely affected shall stay such an order or

decision; Provided, that all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision. On the other hand, Mariwasa maintains that whatever "obvious inconsistency" or "irreconcilable repugnancy" there may have been between B.P. 129 and Article 82 of E.O. 226 on the question of venue for appeal has already been resolved by Circular 1-91 of the Supreme Court, which was promulgated on February 27, 1991 or four (4) years after E.O. 226 was enacted. Sections 1, 2 and 3 of Circular 1-91, is herein quoted below: 1. Scope. These rules shall apply to appeals from final orders or decisions of the Court of Tax Appeals. They shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by statute to the Court of Appeals or the Supreme Court. Among these agencies are the Securities and Exchange Commission, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Secretary of Agrarian Reform and Special Agrarian Courts under RA 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission and Philippine Atomic Energy Commission. 2. Cases not covered. These rules shall not apply to decisions and interlocutory orders of the National Labor Relations Commission or the Secretary of Labor and Employment under the Labor Code of the Philippines, the Central Board of Assessment Appeals, and other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute. 3. Who may appeal and where to appeal. The appeal of a party affected by a final order, decision, or judgment of the Court of Tax Appeals or of a quasi-judicial agency shall be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact or of law or mixed questions of fact and law. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided in Rule 45 of the Rules of Court.

It may be called that Section 9(3) of B.P. 129 vests appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of quasi-judicial agencies on the Court of Appeals, to wit: (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals. Clearly evident in the aforequoted provision of B.P. 129 is the laudable objective of providing a uniform procedure of appeal from decisions of all quasi-judicial agencies for the benefit of the bench and the bar. Equally laudable is the twin objective of B.P. 129 of unclogging the docket of this Court to enable it to attend to more important tasks, which in the words of Dean Vicente G. Sinco, as quoted in our decision in Conde v. Intermediate Appellate Court 4is "less concerned with the decisions of cases that begin and end with the transient rights and obligations of particular individuals but is more intertwined with the direction of national policies, momentous economic and social problems, the delimitation of governmental authority and its impact upon fundamental rights. In Development Bank of the Philippines vs. Court of Appeals, 5 this Court noted that B.P. 129 did not deal only with "changes in the rules on procedures" and that not only was the Court of Appeals reorganized, but its jurisdiction and powers were also broadened by Section 9 thereof. Explaining the changes, this Court said:
. . . Its original jurisdiction to issue writs of mandamus, prohibition, certiorari and habeas corpus, which theretofore could be exercised only in aid of its appellate jurisdiction, was expanded by (1) extending it so as to include the writ of quo warranto, and also (2) empowering it to issue all said extraordinary writs "whether or not in aid of its appellate jurisdiction." Its appellate jurisdiction was also extended to cover not only final judgments of Regional Trial Courts, but also "all final judgments, decisions, resolutions, orders or

awards of . . . quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of sub-paragraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948," it being noteworthy in this connection that the text of the law is broad and comprehensive, and the explicitly stated exceptions have no reference whatever to the Court of Tax Appeals. Indeed, the intention to expand the original and appellate jurisdiction of the Court of Appeals over quasi-judicial agencies, instrumentalities, boards, or commissions, is further stressed by the last paragraph of Section 9 which excludes from its provisions, only the "decisions and interlocutory orders issued under the Labor Code of the 6 Philippines and by the Central Board of Assessment Appeals."

However, it cannot be denied that the lawmaking system of the country is far from perfect. During the transitional period after the country emerged from the Marcos regime, the lawmaking power was lodged on the Executive Department. The obvious lack of deliberation in the drafting of our laws could perhaps explain the deviation of some of our laws from the goal of uniform procedure which B.P. 129 sought to promote. In exempli gratia, Executive Order No. 226 or the Omnibus Investments Code of 1987 provides that all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision. Noteworthy is the fact that presently, the Supreme Court entertains ordinary appeals only from decisions of the Regional Trial Courts in criminal cases where the penalty imposed is reclusion perpetua or higher. Judgments of regional trial courts may be appealed to the Supreme Court only by petition for review on certiorari within fifteen (15) days from notice of judgment in accordance with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as amended, this being the clear intendment of the provision of the Interim Rules that "(a)ppeals to the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court." Thus, the right of appeal provided in E.O. 226 within thirty (30) days from receipt of the order or decision is clearly not in consonance with the present procedure before this Court. Only decisions, orders or rulings of a Constitutional Commission (Civil Service Commission, Commission on Elections or Commission on Audit), may be brought to the Supreme Court on original petitions for certiorari under Rule 65 by the aggrieved party within thirty (30) days form receipt of a copy thereof. 7 Under this contextual backdrop, this Court, pursuant to its Constitutional power under Section 5(5), Article VIII of the 1987 Constitution to promulgate rules concerning pleading, practice and procedure in all courts, and by way of implementation of B.P. 129, issued Circular 1-91 prescribing the rules governing appeals to the Court of Appeals from final orders or decisions of the Court of Tax Appeals and quasi-judicial agencies to eliminate unnecessary contradictions and confusing rules of procedure.

Contrary to petitioner's contention, although a circular is not strictly a statute or law, it has, however, the force and effect of law according to settled jurisprudence. 8 In Inciong v. de Guia, 9 a circular of this Court was treated as law. In adopting the recommendation of the Investigating Judge to impose a sanction on a judge who violated Circular No. 7 of this Court dated September 23, 1974, as amended by Circular No. 3 dated April 24, 1975 and Circular No. 20 dated October 4, 1979, requiring raffling of cases, this Court quoted the ratiocination of the Investigating Judge, brushing aside the contention of respondent judge that assigning cases instead of raffling is a common practice and holding that respondent could not go against the circular of this Court until it is repealed or otherwise modified, as "(L)aws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or customs or practice to the contrary." 10 The argument that Article 82 of E.O. 226 cannot be validly repealed by Circular 1-91 because the former grants a substantive right which, under the Constitution cannot be modified, diminished or increased by this Court in the exercise of its rule-making powers is not entirely defensible as it seems. Respondent correctly argued that Article 82 of E.O. 226 grants the right of appeal from decisions or final orders of the BOI and in granting such right, it also provided where and in what manner such appeal can be brought. These latter portions simply deal with procedural aspects which this Court has the power to regulate by virtue of its constitutional rule-making powers. The case of Bustos v. Lucero 11 distinguished between rights created by a substantive law and those arising from procedural law:
Substantive law creates substantive rights . . . . Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations (60 C.J., 980). Substantive law is that part of the law which creates, defines and regulates rights, or which regulates rights and duties which give rise to a cause of action, as oppossed to adjective or remedial law, which prescribes the method 12 of enforcing rights or obtains a redress for their invasion.

Indeed, the question of where and in what manner appeals from decisions of the BOI should be brought pertains only to procedure or the method of enforcing the substantive right to appeal granted by E.O. 226. In other words, the right to appeal from decisions or final orders of the BOI under E.O. 226 remains and continues to be respected. Circular 1-91 simply transferred the venue of appeals from decisions of this agency to respondent Court of Appeals and provided a different period of appeal, i.e., fifteen (15) days from notice. It did not make an incursion into the substantive right to appeal.

The fact that BOI is not expressly included in the list of quasi-judicial agencies found in the third sentence of Section 1 of Circular 1-91 does not mean that said circular does not apply to appeals from final orders or decision of the BOI. The second sentence of Section 1 thereof expressly states that "(T)hey shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by statute to the Court of Appeals or the Supreme Court." E.O. 266 is one such statute. Besides, the enumeration is preceded by the words "(A)mong these agencies are . . . ," strongly implying that there are other quasi-judicial agencies which are covered by the Circular but which have not been expressly listed therein. More importantly, BOI does not fall within the purview of the exclusions listed in Section 2 of the circular. Only the following final decisions and interlocutory orders are expressly excluded from the circular, namely, those of: (1) the National Labor Relations Commission; (2) the Secretary of Labor and Employment; (3) the Central Board of Assessment Appeals and (4) other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute. Since in DBP v. CA 13 we upheld the appellate jurisdiction of the Court of Appeals over the Court of Tax Appeals despite the fact that the same is not among the agencies reorganized by B.P. 129, on the ground that B.P. 129 is broad and comprehensive, there is no reason why BOI should be excluded from Circular 1-91, which is but implementary of said law. Clearly, Circular 1-91 effectively repealed or superseded Article 82 of E.O. 226 insofar as the manner and method of enforcing the right to appeal from decisions of the BOI are concerned. Appeals from decisions of the BOI, which by statute was previously allowed to be filed directly with the Supreme Court, should now be brought to the Court of Appeals. WHEREFORE, in view of the foregoing reasons, the instant petition for certiorari and prohibition with application for temporary restraining order and preliminary injunction is hereby DISMISSED for lack of merit. The Temporary Restraining Order issued on July 19, 1993 is hereby LIFTED. SO ORDERED.

G.R. No. 123780 December 17, 1999 In Re: Petition Seeking for Clarification as to the Validity and Forceful Effect of Two (2) Final and Executory but Conflicting Decisions of the Honorable Supreme Court Group Commander, Intelligence and Security Group, Philippine Army, under the incumbency of COLONEL PEDRO R. CABUAY, JR., petitioner, vs. DR. POTENCIANO MALVAR, PRIMEX CORPORATION, MARCELINO LOPEZ, as representative of the Heirs of Hermogenes Lopez, respondents, HEIRS OF ELINO ADIA, represented by JULIANA ADIA, intervernors.

PURISIMA, J.: Originally filed on February 27, 1996 by Colonel Pedro R. Cabuay, Jr., Group Commander, Intelligence and Security Group of the Philippine Army, was the petition at bar "seeking for clarification as to the Validity and Forceful Effect of Two (2) Final and Executory but Conflicting Decisions of the Honorable Supreme Court" in G.R. No. 90380 and G.R. No. 110900. On January 20, 1997, the Court resolved to dismiss the petition for lack of any justiciable issue raised. Confident in the righteousness and merits of their cause, the petitioners and intervenors sent in a motion for reconsideration inviting this Court's attention to the injustice that may result from the two (2) conflicting decisions, especially due to the impending enforcement of a writ of execution issued by the Regional Trial Court in Antipolo, Rizal (now Antipolo City) in Civil Case No. 463-A, implementing the ruling of this Court in G.R. No. 90380. The said writ was directed against the buildings and structures of the Intelligence and Security Group (ISG) of the Philippine Army, the Group Commander of which initiated the present recourse. The ISG derived the right to occupy a portion of a subject parcel of land and to erect thereon extensive military structures, from the Heirs of Elino Adia, represented by Juliana Adia, the Intervenors, whose right to subject property was duly recognized in G.R. No. 110900. On the other hand, the respondents insist on the validity of Transfer Certificate of Title No. 196256, registered in the names of respondents' predecessors-ininterest (Lopezes), placing reliance on the pronouncements of this Court in G.R. No. 90380.

Acting on the aforesaid motion for reconsideration, this Court reconsidered its Resolution of January 20, 1997, after finding the existence of a real and existing conflict of interest between the respondents, whose claim to the title of subject property is anchored on the Decision of this Court in G.R. No. 90380, and the petitioner and intervenors, whose claim is based on the decision of the Court of Appeals in CA-G.R. SP No. 27602 and this Court's Resolution in G.R. No. 110900. Thus, in the interest of justice, this Court resolved to give due course to the motion for reconsideration of the petitioner and intervenors and ordered the parties to submit their respective Memoranda within thirty (30) days from notice. G.R. No. 90380 Records on hand disclose that, on April 15, 1981 in Civil Case No. 24873, entitled "Ambrosio Aguilar vs. Heirs of Fernando Gorospe, et al.", the Regional Trial Court in Pasig, Rizal, Branch 161, rendered judgment in favor of plaintiff Ambrosio Aguilar, disposing as follows: WHEREFORE, judgment is hereby rendered in favor of plaintiff and against defendants: 1. Declaring the plaintiff as the true and rightful owner of the land in question; 2. Declaring null and void ab initio Original Certificate of Title No. 637 and all subsequent transfer certificates of title emanating therefrom; 3. Dismissing the intervention of the Director of Lands; and 4. Ordering defendants to pay to plaintiff, jointly and severally: (a) P20,000.00 as moral damages; (b) P10,000.00 as and for attorney's fees, and (c) the costs of suit. The counterclaims are hereby dismissed. The said decision was appealed to the Court of Appeals, the appeal docketed as CA-G.R. CV No. 07475, but on August 1, 1989, the Court of Appeals 1 affirmed in its entirety the said decision in Civil Case 24873. After the motion for reconsideration of Eduardo V. Santos' (one of the defendants) was denied in the Order dated October 5, 1989, he elevated the case to this Court on a petition for

review, under G.R. No. 90380, entitled "Eduardo V. Santos, petitioner versus The Hon. Court of Appeals and Ambrocio Aguilar, Respondents." On September 13, 1990, this Court affirmed the decision of the Court of Appeals, which decision became final and executory per entry of judgment dated November 29, 1990. In the said Decision, the Court 2 resolved the conflicting claims between the petitioner, Eduardo V. Santos, and the private respondent, Ambrocio Aguilar, thus: Petitioner's arguments hinge on whether or not the parcel of land in dispute was brought within the operation of the Land Registration Act. We rule that to never did. Accordingly, finding the assigned errors to be without merit, the petition must fail. In reaffirming the declaration of nullity of OCT No. 537 we rely on the Director of Lands vs. Basilio Abache, et al. where it was ruled that land is not affected by operations under the torrens system unless there has been an application to register it, and registration has been made pursuant to such application. In that case, while the lot in question was awarded in a cadastral proceeding to movant therein, it was registered and a certificate of title was issued in the names of persons who never established their right over the same, i.e., they neither claimed the lot nor appeared at the trial. We affirmed the lower court's declaration of nullity of the certificate of title and the order for the issuance of a new certificate of title in the name of movant. In the case at bar, not only do the records indicate that Gorospe, petitioner's predecessor-in-interest, had not filed any application for the parcel of land in question; also, no evidence was submitted that the registration in Gorospe's name was made pursuant to a satisfactory showing of his compliance with the application requirements for homestead under the Public Land Act, i.e., that he introduced improvements thereon and cultivated the same, etc. Compare Gorospe's record with the mountain of evidence in favor of private respondent. To support his predecessor-in-interest's claim of ownership, private respondent presented the following documents: 1) The original tracing cloth of Plan H-138612 [Exhibits "A-3"] which was surveyed for Hermogenes Lopez;

2) The microfilm of Plan H-138612 also bearing the corresponding Accession No. 103378 [Exhibit "D-1"]; 3) The Whiteprint of Plan H-138612 also bearing the same Accession No. 103378 [Exhibit "D"1]; 4) The inventory Book prepared in the year 1951 by the Bureau of Lands [Exhibit "XX"] containing a list of salvaged plans [among] which [was] . . . Plan H-138612 as surveyed by Hermogenes Lopez; 5) The Index Card of the Bureau of Lands [Exhibit "XX2"] showing the Plan H-138612 is one of the salvaged plans and the same is in the name of Hermogenes Lopez; 6) The consolidated Plan AP-6450 [Exhibit "X"] prepared by the Bureau of Lands which shows that Hermogenes Lopez is the owner of the parcel of land covered by Plan H-138612; 7) Plans H-147383, Psu-146727 and F-1543 which all show that Hermogenes Lopez is one of the boundary owners. In addition to the foregoing public documents, also presented were persons connected with the Bureau of Lands whose testimonies proved that Hermogenes Lopez filed a homestead application bearing No. H-138612 covering the land in question and that the same was duly processed by the Bureau of Lands after he had complied with all the requirements of the law. Said patent was duly approved and a corresponding homestead patent was issued in his favor. What irretrievably turns the tide against the petitioner is the finding that there exist in the records of the Register of Deeds of Pasig two original certificates of title bearing No. 537 based on a free patent and covering two different lots situated in two different municipalities of Rizal, and registered in the names of two different persons. The first was for a parcel of land in Pililla, Rizal, registered in the name of a certain Simeon Alejar on December 23, 1993, the validity and regularity of which has never been questioned. The second is the questionable document registered on August 31, 1944 in the name

of Fernando Gorospe. The petition is silent on this aspect; petitioner does not even attempt to refute this. On the contrary, while petitioner avers that OCT No. 537 proceeds from a homestead application, the spurious title on its face indicates that it was based on a free patent. It is thus only proper, based on the foregoing, that We reaffirm the declaration that OCT No. 537 is null and void ab initio and the land covered thereby has never having been brought under the operation of the torrens system. This being the case, Sec. 38 of the Land Registration Act cannot be invoked in this instance. Parenthetically, it may be stated that Our rulings in Baranda v. Baranda andAlbienda v. Court of Appeals cited by petitioner to support his contention do not apply to the facts of the case at bar because both involve situations where the original registration was valid and Sec. 38 of the Land Registration Act was squarely applicable. G.R. No. 110900 It appears that during the pendency of the case aforementioned, or on September 10, 1985, to be exact, the Heirs of Elino Adia (herein intervenors) lodged a protest against Plan H-138612 of Hermogenes Lopez involving the same property in dispute, before the Lands Management Bureau (LMB), which land protest was decided by the LMB in favor of the protestants, Heirs of Elino Adia. In its Decision of December 10, 1990, the LMB summarized the antecedents facts and circumstances leading to the institution of the present case as follows: The Heirs of Elino Adia filed a protest against Plan H-138162 of Hermogenes Lopez covering a piece of land (equivalent to Lot 7546, Cad. 29, Extension, Antipolo Cadastre), situated at Barrio dela Paz, Antipolo, Rizal. On the September 10 and October 28, 1985 hearing in the case, only protestants appeared. Upon request of counsel, an exparte investigation was conducted with protestants submitting testimonial and documentary evidence. After protestants rested their case, one Francisco R. Cruz filed an intervention alleging that he has been deprived of his chance to be heard and present his evidence. In the interest of justice, another investigation was conducted on April 10 and September 29, 1989. This time, Francisco Cruz was required to present the original or certified copy of the Quitclaim or

Transfer of Rights dated May 18, 1981, allegedly executed by Hermogenes Lopez in his favor. To obviate lengthy investigation, the parties agreed to submit their respective memorandum in support of their claims. Apart from testimonial and documentary evidence presented during the hearing of October 28, 1985, the Heirs of Elino Adia submitted their memorandum contending that from 1929 up to July 1943, Elino Adia occupied and cultivated continuously, adversely, publicly and peacefully the disputed land; that he introduced considerable improvements thereon; that after Elino's death, possession of the land was taken over by Emiliano and Juliana Adia; that the land was declared for taxation purposes and the taxes thereon paid; and that they therefore prayed for the approval of the final proof on the homestead application of the Heirs of Elino Adia. In support thereof, they submitted Exhibits "A", "B", "C", "C-1", "H-1", "N", "O" and "Q". Upon the other hand, applicants-respondents Heirs of Hermogenes Lopez averred that ownership of the land contested by protestant had been the subject of exhaustive judicial proceedings in the Court of First Instance of Rizal; that ownership of the land in question by deceased Hermogenes Lopez had already been duly established and hence, protestants claim has no legal and factual bases, as it had been finally settled judicially; and that the assignment of rights in favor of Francisco Cruz is only a simulation, because at the time of the alleged sale Hermogenes Lopez was no longer the owner of the disputed land having been previously conveyed to Ambrocio Aguilar in 1959. Respondent prayed that the protest be denied and the intervention, dismissed. Intervenor Francisco Cruz, for his part, asserted that on May 18, 1991, the land in question and all its improvements were transferred to him in "Quitclaim and assignment of Rights"; that he tried to locate the records of the homestead application of Hermogenes Lopez but to no avail; that after a fruitless search for the said application, he finally requested on November 27, 1982 for inclusion of Hermogenes Lopez, now Francisco Cruz in the list of survey claimants in the Antipolo Cadastre; that as successor-in-interest of the deceased Hermogenes Lopez, he has a valid and better claim to the land in controversy; that all the unpleasant incidents attendant to the case hindered him in constructing his house on the land; and, that he prayed for the award to him of the land in question.

On July 7, 1989, the Overlooking Storeowners and Planters Association, Inc. also intervened and interposed their protest against the Plan H-138612 of Hermogenes Lopez. It averred that respondent Hermogenes Lopez is not entitled to a homestead patent because neither he nor his legal heirs resided or occupied that land in question. As things are, there are four (4) parties claiming to be entitled to acquire the land in question. The issue, therefore, here is who among them deserves to be given the preference rights to apply for the controverted land. After examining and evaluating the respective position and evidence of the parties, the LMB found for and decided in favor of the Adias, in its Order dated December 10, 1990, the decretal portion of which ratiocinated and ruled: WHEREFORE, Plan H-138612 appearing in the records of this Office in the name of the heirs of Hermogenes Lopez is hereby as it is, corrected and amended, in that it shall thereafter be considered to be recorded in the name of Elino Adia, now his heirs represented by Emiliano and Juliana Adia. The claims of Hermogenes Lopez and all those claiming under him, Francisco R. Cruz and the Overlooking Storeowners and Planters Association, Inc., are hereby dismissed and this case dropped from the records. The homestead application of Elino Adia, covering plan H-138612 shall be reconstituted or in lieu thereof, a new application may be filed by the Heirs of Elino Adia, which shall thereafter be given due course. Within a period of sixty (60) days from the receipt of this order, the O.S. & P.A. shall vacate and remove whatever improvements they have in the premises. What is decisively clear and of utmost significance to note, is that in its said decision, the LMB found that subject land was still a public land, at the time; concluding and ruling thus: The land in dispute is definitely a PUBLIC LAND and as such, the authority to administer and dispose of it is entrusted to Department of Environment and Natural Resources. The authority to administer public land carries with it such powers as GRANTING, APPROVING, REJECTING and REINSTATING public land applications, which are all administrative and executive in nature.

Their motion of reconsideration having been denied by the LMB on January 29, 1992, the Lopezes brought a petition for certiorari and prohibition before the Court of Appeals, docketed as CA-G.R. SP No. 27602; which petition was, however, dismissed in the Decision, dated February 26, 1993, of the Court of Appeals, with the following findings of facts, disquisition and conclusion, to wit: In the investigation, the Heirs of Elino Adia presented six (6) witnesses, namely, Bartolome Sierra, Maria Sierra, Francisco Tandoc, Fortunato Suarez, Juliana Adia and Emiliano Adia. Their testimony substantially consist of the following: Bartolome Sierra declared that he was among the first settlers in Barrio Macatubang in 1922 followed by Elino Adia; his house was more or less 200 meters away from Adia's house; he is a son of Luciana Sierra whose land adjoins the land of Elino Adia, which was (Sierras) (sic) surveyed under Plan F-46231; Adia's (sic) planted palay and fruit trees on his land and used portions thereof for carabao fattening; some of the trees planted by Adia are still existing; Juliana and Emiliano are the children of spouses Elino Adia and Lucia San Gabriel; and no other person claimed Adia" land and he does not know Hermogenes Lopez. Mariano Suarez declared that he was born in barangay dela Paz and was the Barangay Captain thereof in 1972 and 1981; he knows Emiliano and Juliana whose father (Elino) died during the Japanese occupation; after Elino's death, Emiliano and Juliana continued with the occupation and cultivation of the land; he does not know Hermogenes Lopez; and different kinds of trees, such as mango, duhat and bamboo, some of which are still visible, were planted by them but most of the trees were used for firewood by the people. Juliana Adia said that her parents Elino Adia and Lucia Adia are now both dead; they occupied the land in question, cleared the same and planted fruit trees thereon; her father Elino Adia applied for homestead and the survey of the land was approved in 1939; after the death of her parents, her uncle Ambrocio Narvasa helped in the cultivation of the land; and her possession up to the present has been peaceful, unmolested by anybody, including Fermin Lopez and Hermogenes Lopez. This testimony was corroborated by Francisco Tandoc, Fortunata Suarez and Emiliano Adia. In support of their claim, protestants submitted Exhibits "A" to "Q" inclusive; Among these is a certified Tracing Cloth of Plan-H-138612 SURVEYED FOR ELINO ADIA with accession No. 103378 issued by Engineer

Felipe R. Valenzuela, Chief Technical Services Section, Bureau of Lands dated July 31, 1981, containing an area of 19.48888 (sic) hectares situated at de la Paz, Antipolo, Rizal, with the certification stating, to wit: This is to certify that this tracing cloth plan is true copy of Homestead Application No. 138612 which was approved on February 7, 1939, as verified from the microfilm on file in this office. This certified plan is issued upon request of Engr. Ricardo O. Vasquez who paid the verification fee of P5.00 under O.R. No. 9915364 dated July 31, 1981. (Exhibit A) Plan H-138612 was subject of Civil Case No. 5957 in the then Court of First Instance of Rizal entitled, "Hermogenes Lopez versus Fernando Gorospe" wherein former Director of Lands Nicanor Jorge testified in court. The Heirs of Hermogenes Lopez maintain that the ownership of the land in question had already been settled in judicial proceedings before the Court of First Instance of Rizal in Civil Case No. 24873 entitled "Ambrosio Aguilar versus Beatriz de Zuzuarregui, et al., for declaration of inexistence and/or nullity of Free Patent, Original Certificate of Title and Transfer Certificate of Title. Here, Ambrosio Aguilar, plaintiff, was declared as the true and rightful owner of the land in question and OCT No. 573 it the name of Fernando Gorospe was declared null and void ab-initio. The land was also in (sic) the subject of a protest filed with the Bureau of Lands which was dismissed. Further, the land was involved in Tanodbayan Case No. 830220 entitled "Juliana Adia versus Rodolfo Paelmo", which was resolved in favor of Paelmo, the Regional Land Director in region IV of the defunct Bureau of Lands, as follows: The document presented by respondent Rodolfo Paelmo consisting of the approved plan in the name of Hermogenes Lopez, predecessor-in-interest of Ambrocio Aguilar, plaintiff in Civil Case No. 24873, strongly belies complainants father in the amended survey plan. All the foregoing considered, there exists no probable cause to justify further inquiring into the charge. WHEREFORE, let this complaint be as the same hereby DISMISSED.

The ownership of the land in question appears also to have been clearly established in Civil Case No. 463-3 filed by Hermogenes Lopez and the title and possession over the said parcel of land were ordered reconveyed to the heirs of Hermogenes Lopez in the February 3, 1985 decision whose dispositove portions reads: In view of the foregoing consideration Judgment is hereby rendered: 1. Declaring the Deed of Absolute Sale Exhibit "C" in favor of defendants (Aguilar) dated July 31, 1959 null and void. 2. Ordering the defendants to vacate the land in question or described in the claim. 3. Declaring the plaintiff the true and absolute owners of said parcel of land. Pending appeal of the aforementioned decision, a writ of demolition was issued against the squatters on the land. The Heirs of Elino Adia in behalf of all squatters filed a petition for certiorari with the appellate court to nullify the judgment and the order of demolition and a restraining order was issued. The Heirs of Hermogenes Lopez filed their comment and on July 15, 1985 the petition for certiorariwas denied and the restraining order was dissolved. For said reason, the Heirs of Hermogenes Lopez pray for the dismissal of the protest and the intervention. It will be noted that except for the instant investigation, the case has never been formally investigated by this Office in order to determine the issue of who has the right to the land in dispute. The protest filed by the Heirs of Elino Adia with the Region IV was never formally investigated The case ended in a Tanodbayan case filed against Director Paelmo, who in his answer to the complaint of Adia solely relied on the decision of the court in Civil Case No. 24873, portion of which is quoted hereunder. The document presented by the respondent Rodolfo Paelmo consisting of the approved plan in the name of Hermogenes Lopez, predecessor-in-interest of Ambrocio Aguilar, plaintiff in Civil Case No. 24873, strongly belies complainants ascertion that respondent

Rodolfo Paelmo used the approved plan of complainant's father in the amended survey. It is worth mentioning also that Plan H-13812 (sic) was also involved in Civil Case No. 5957, entitled "Hermogenes Lopez versus Fernando Gorospe" wherein Director of Lands Nicanor Jorge testified to the effect that the applicant in the application covering Plan H-138612 was Elino Adia for whom it was surveyed. Portions of his direct testimony are quoted as follows: DIRECT EXAMINATION: Q Mr. Jorge, I see that this particular area involved is bounded on the East by Elino Adia with a reading underneath which may be quoted as Homestead Application No. 13812 (sic). Will you please tell us, Mr. Director what that mean? A It shows that Elino Adia is a homesteader and his homestead is numbered as Homestead Application No. 13812 (sic). Q As far as your office is concerned, who is the homestead applicant per Homestead Application No. 13812 (sic) as appearing in the eastern boundary of the document Exhibit "8". A On the basis of this plan it shows that Elino Adia is a homesteader whose homestead is Homestead Application No. 13812 (sic). . . . Q Exhibit "39" what would you say? Would you say that Hermogenes Lopez is the person for whom this survey Plan H-13812 (sic) was made? A It appears that when this plan Exhibit "39" was certified to, the name appearing on the original plan was not HERMOGENES LOPEZ that is why there appeared here AS PREPARED FOR. Q Now, you would like to convey to the effect that per document Exhibit "39", Hermogenes Lopez was NOT THE PERSON for whom it was originally survey.

A That is true. Q You said that is true, what do you mean? A I mean that when this was certified by our Chief Records Division that plan appearing here was not surveyed in the name of Hermogenes Lopez. On July 24, 1990, the Chief of Surveys Division issued a memorandum involving Plan H-13816 (sic) addressed to the Chief, Legal Division which read: Please be informed that the only records that we have of the Plan H-13812 (sic) in the name of Hermogenes Lopez containing an area of 19.4888 hectares situated in Dela Paz, Antipolo as surveyed on November 10, 1938 by surveyor Benito Guevarra under the supervision of Public Lands Surveyor Conrado Santillan. The then Chief of Technical Services of the National Capital Region Engr. Felipe R. Venezuela issued a certified copy of H-13812 (sic) allegedly as verified in the microfilm. We had however changed the survey, claimant from Hermogenes Lopez as appearing in our record of survey plan to Elino Adia.. . . . As records are now three responsible Bureau of Lands Officials certified and testified in court in connection with Plan H-13812 (sic). Nicanor Jorge, in Civil Case No. 5957, declared that Elino Adia is a Homesteader and his homestead is numbered as Homestead Application No. 13812 (sic). On the other hand, the Chief, Technical Services Section, Surveys Division, Region IV, certified that the tracing cloth plan marked as Exhibit "A" was a Plan H-13812 (sic) surveyed for Elino Adia with Accession No. 103378. This was contradicted by Engr. Privadi Dalire, Chief, Bureau who certified that Plan H-13812 (sic) is in the name of Hermogenes Lopez and that Engr. Felipe Venezuela changed the survey claimant from Hermogenes Lopez as appearing in our records of survey plan to Elino Adia. From all the foregoing, it is obvious that crucial and vital point to be established is the real and true owner of Plan H-13812 (sic).

Portions of the testimony of Director Nicanor Jorge is quoted hereunder: Q Now, there seems to be an incompatibility between Exhibit "D" and "39" with the original plan pertaining to Psu106705, which was surveyed for Pablo and Luz Ventura claim who appears to be in the western boundary of the area involved under Exhibit "39" and "D". In this document it shows that Elino Adia Homestead Application No. 13812 (sic). So there are three seemingly incompatible sheets. Will you please tell us, if you know how can this happened? A Well, I could not advance any opinion why they have such incompatibility in the preparation of this plan. Unless, there has been somemaneuvering, well could not tell what had happened. Clearly, the authenticity of the survey records of this Office is at issue as to the real owner of Plan H-13812 (sic) that is, whether it is Elino Adia or Hermogenes Lopez. The Heirs of Elino Adia submitted Exhibit "B", copy of Psu-106705 in the name of Pablo and Luz Ventura involving parcels of land in Barrio dela Paz, Antipolo, Rizal, surveyed on October 26, 1938 and approved on May 10, 1939 showing that Elino Adia is the boundary owner at the eastern portion of the land covered thereby, Exhibit "G" is a copy of TCT No. 44541 of Robert Philipps issued by the Register of Deeds of Rizal on May 26, 1956 and originally registered on August 2, 1939 as OCT No. 1254 in the name of Pablo Ventura showing that Elino Adia is the boundary owner at the eastern portion thereof as of August 2, 1939. Exhibit "E" is a copy of TCT No. 8362 of the La Colina Development Corporation issued by the Register of Deeds of Rizal and originally registered on August 2, 1939 as OCT No. 1254 in the name of Pablo Ventura showing that the property covered thereby is bounded on the eastern portion by H-13812 (sic) of Elino Adia as of August 2, 1939. Of all the parties thereto, only the heirs of Elino Adia was able to submit substantial and material testimonial and documentary

evidence in substantiation of their claims. Instead of availing of a formal proceedings, the Heirs of Hermogenes Lopez and Intervenors Francisco Cruz and the Overlooking Storeowners and Planters Association, Inc. opted to submit their respective memorandum or position paper in support of their respective claims. On July 22, 1993, the Lopezes filed with this Court a petition for review on certiorari, docketed as G.R. No. 110900. The Court resolved to "DENY" the petition for failure to comply with legal requirements. In the pertinent Resolution, dated August 11, 1993, this Court further stated: Besides, even if the petitioners complied with the aforesaid requirement, the petition would still be denied as no reversible error was committed by the appellate court. (emphasis supplied) Petitioner's motion for reconsideration in G.R. No. 110900 was denied with finality on November 3, 1993. On December 6, 1993, the denial became final and executory. On November 25, 1994 and in accordance with the LMB decision dated 10 December 1990 (as affirmed by this Court) which, among others, directed that "the homestead application of Elino Adia, covering plan H-138612 shall be reconstituted or in lieu thereof a new application may be filed by the Heirs of Elino Adia," the heirs of Elino Adia filed eight (8) new applications covering the 19.4888 hectares earlier declared as public land. On December 14, 1994, eight (8) land patents in the name of "Heirs of Elino Adia", represented by Juliana Adia, were issued by the DENR's OIC-Provincial Environment and Natural Resources Officer of Rizal (under the authority of the President) and on January 26, 1995, Original Certificates of Title Nos. P-819 to P-826 were issued in the name of the Heirs of Elino Adia, represented by Juliana Adia. Other incidents/cases During the pendency of both cases, several incidents/cases were initiated by the Heirs of Hermogenes Lopez, tending to further muddle the situation. While Civil Case No. 24873 (Aguilar vs. Gorospe, et al. for annulment of OCT No. 536 which was later elevated as G.R. No. 90380) was pending before the Court of Appeals, the Lopezes brought an action for cancellation executed by Hermogenes Lopez in favor of Ambrosio Aguilar. The case was docketed as Civil Case No. 463-A before Branch 71 of the Rizal Regional Trial Court in Antipolo,

Rizal (now Antipolo City). 3 On February 5, 1985, the said Regional Trial Court came out with a decision declaring the deed of absolute sale in litigation null and void, and disposing thus: In view of the foregoing considerations Judgment is hereby rendered: 1. Declaring the Deed of Absolute Sale Exhibit "C" in favor of defendants dated July 31, 1959 null and void ab-initio; 2. Ordering defendants to vacate the land in question or described in the complaint (par. 4 thereof) and immediately restore the possession thereof to the plaintiffs; 3. Declaring the plaintiffs the true and Absolute owners of the said parcel of land; and 4. To pay the attorney's fees to plaintiffs in the sum of P5,000.00 and the costs of this action. Aguilar's motion for reconsideration was denied by the trial court on March 14, 1985 and the decision of the Regional Trial Court was subsequently affirmed by the Court of Appeals on August 18, 1987 in CA G.R. No. 06242. 4 In view of the aforecited judgment of Branch 71 of the Regional Trial Court in Antipolo, Rizal (now Antipolo City), the Lopezes presented an "Urgent Ex-Parte Motion" before the same court, praying for the cancellation of TCT No. 72439 (in the name of Eduardo V. Santos) and for the issuance of a new certificate of title in their favor. The said motion was granted by the same Regional Trial Court on April 19, 1985 and TCT No. N-104422 was then issued in favor of the Lopezes. On May 8, 1995, Eduardo V. Santos filed with the Court of Appeals, docketed as CA-G.R. SP No. 06096, a petition for nullification of the portion of the aforesaid decision of the Regional Trial Court in Civil Case No. 463-A adjudging the Lopezes as "true and absolute" owners of the land in question. Santos also sought the nullification of TCT No. N-104422 issued in the name of the Lopezes. On December 23, 1985, the Court of Appeals rendered its decision in CA G.R. SP No. 06096, 5 disposing as follows: WHEREFORE, judgment is hereby rendered:

1. Declaring that portion of the decision of 5 February 1985 adjudging defendants Lopezes as the true and absolute owners of the land in question as null and void; 2. Declaring the order of 19 April 1985 to be null and void; 3. Ordering the Register of Deeds of Rizal, Marikina Branch, to cancel TCT No. N-10442 issued in the names of defendants Lopezes and restoring TCT No. 72439 in the name of plaintiff and the notice of lis pendens thereon; 4. Ordering defendants Lopezes to surrender to the Register of Deeds of Rizal, Marikina Branch, within five (5) days from entry of judgment, TCT No. N-10442 for cancellation. Should they fail to do so, the Register of Deeds, Marikina Branch, may proceed to cancel the original and owner's duplicate of the title without further notice; 5. Denying plaintiff's prayer to be placed in possession of the property in question; and, 6. Dismissing the complaint as against defendants spouses Aguilar. Their set-back notwithstanding, the Lopezes once again filed with the Regional Trial Court, Branch 71, Antipolo, Rizal 6 (now Antipolo City) a Motion to Order Cancellation of Transfer Certificate of Title No. 72439 (in the name of Eduardo Santos) and Issuance of New Certificate of Title, in lieu thereof. On January 28, 1991, the said Regional Trial Court issued an order granting subject motion and, on February 8, 1991 the Register of Deeds in Marikina issued TCT No. 196256 in the name of the Lopezes. On June 18, 1991, the Lopezes filed another petition purportedly under Section 108, PD 1529, with Branch 71 of the Regional Trial Court in Antipolo, Rizal (now Antipolo City). This time, they (Lopezes) prayed for, among others, for the cancellation of OCT No. 537 7 "and all Transfer Certificates of Title originating therefrom" and that TCT No. 196256, which was previously issued to them, be "indicated as an Original Certificate of Title with a corresponding number assigned therefor."

On June 24, 1991, Branch 71 of the Regional Trial Court of Antipolo, Rizal, (now Antipolo City) granted the said petition and ordered the Register of Deeds in Marikina, Rizal to cancel OCT No. 537 and to indicate TCT No. 196256 as OCT and to further: . . . indicate that it was, as herein quoted: "issued by virtue of the Decision of the Supreme Court in G.R. No. 90380 on September 13, 1990 (in relation to the Decision in Civil Case No. 463-A as affirmed by the Court of Appeals in CA-G.R. CV No. 06242 and the Supreme Court in G.R. No. 81092) which declared that Hermogenes Lopez, now his heirs, as the true and rightful owner by virtue of Homestead Patent Application No. 138612 and the corresponding homestead patent issued in his favor in June, 1939, after complying with the requirements of Commonwealth Act No. 141, as amended, otherwise known as the Public Land Act. On July 31, 1991, the same Register of Deeds inscribed the said Order on TCT No. 196256 and on October 10, 1991, it cancelled TCT No. 196256 and in its place, issued thirteen (13) transfer certificates of title, TCT No. 207990 208000, 208002 and 208358, all in the names of Marcelino Lopez, Felisa Lopez, Zoilo Lopez and Leonardo Lopez. On September 10, 1992, the Lopezes and Primex Corporation, which firm had bought a portion of the property in dispute, 8 filed anew with Branch 71 of the Regional Trial Court in Antipolo, Rizal (now Antipolo City) a "Petition for Entry/Amendment of Certificate of Title", praying that the same Register of Deeds be ordered, among others, to "transcribe Homestead Patent No. 54072 and issue the corresponding Original Certificate of Title in the name of Hermogenes Lopez, assigning to it the certification number, volume, page and such other numbers as he may deem appropriate, and to consider the same registered as of August 31, 1944, the date when Free Patent No. 54072 covering the same property was originally registered." The said petition was granted by the same Regional Trial Court in its Order dated October 8, 1992. Then on January 4, 1994, even after the Resolution in G.R. No. 110900 (upholding the LMB decision in favor of the Adias) had become final and executory, the Lopezes interposed an appeal from the same LMB decision to the Secretary of Environment and Natural Resources but their appeal was dismissed on January 5, 1995. Their (Lopezes) motion for reconsideration was denied in the Order, dated December 4, 1995, but at the same time, the parties were

advised "to pursue their respective claims before the courts and under pertinent laws." On February 21, 1995, Branch 71 of the Regional Trial Court in Antipolo, Rizal (now Antipolo City) issued a writ of execution against the structures/properties of the ISG, Philippine Army, represented by the group commander, the herein petitioner, standing on a portion of the land in question. In the meantime, or on April 20, 1995, Marcelino Lopez sold a portion of the land under controversy to the herein co-respondent, Dr. Potenciano Malvar. On October 6, 1995, the Lopezes presented a motion for the issuance of an alias writ of execution to demolish the structures belonging to the Philippine Army. The said incident prompted the Group Commander of the ISG to file a Comment with the same Regional Trial Court, drawing the attention of the Presiding Judge of the said court to the ruling of this Court in G.R. No. 110900. Despite such step taken by the Group Commander of ISG, however, analias writ of execution issued on December 11, 1995, just the same. It was the persistent threat of demolition of their communications facilities which prompted the Group Commander of the Intelligence and Security Group, Philippine Army, purchaser of a portion of 1,650 square meters, more or less, of subject tract of land, from the heirs of Elino Adia, to bring the present petition which, as heretofore mentioned, the Court resolved to consider and treat as a petition for certiorari under Rule 65. In resolving the petition under consideration, this Court is thus, called upon to resolve the respective claims of the parties, over subject parcel of land, in light of the decision and disposition of this Court in G.R. Nos. 90380 and 110900. It is beyond cavil that subject property was a disposable and alienable public land at the time the principal parties asserted their respective claim thereover. In the initial determination of who has a better and superior right to acquire the said public land, Commonwealth Act No. 141 otherwise known as the Public Land Act, governs. Thereunder, the Director of Lands, subject to the authority of the Secretary of Natural Resources (now Secretary of Environment and Natural Resources) is vested with direct control of the survey, classification, lease, sale or any other form of concession or disposition and management of lands of the public domain, and his decision as to questions of fact is conclusive, when approved by the Secretary of Agriculture and Natural Resources (now Secretary of Environment and Natural Resources) (Section 4, C.A. 141; De los Santos vs. Rodriguez, 22 SCRA 451). It is decisively not proper for the courts to interfere with the administration of public lands by the Director of Lands (now the Lands Management Bureau (LMB).

In De Buyser vs. Director of Lands, 121 SCRA 13 (1983), this Court held: Since the land is admittedly property of public dominions, its disposition falls under the exclusive supervision and control of the Bureau of Lands. And in Francisco vs. Secretary of Agriculture and Natural Resources, 121 SCRA 380, it was reiterated that the law has vested in the Director of Lands primarily, and ultimately in the Secretary of Agriculture and Natural Resources (now Secretary of Environment and Natural Resources) the administration and disposition of public lands. Consequently, the decision of finding by the Director of Lands, as approved by the now Secretary of Environment and Natural Resources, upon a question of fact is conclusive and not subject to review by the courts in the absence of any showing that such decision or finding is tainted with fraud or mistake. In the case at bar, the Court of Appeals and this Court, in G.R. No. 110900, had passed upon the nature of subject parcel of land and upheld the disposition by the Lands Management Bureau (LMB) in favor of the Adias; ratiocinating and finding as follows: To begin with, there is the presumption juris tantum that all the lands form part of the public domain.The land subject of H-138612 is public land not only because no certificate of title has yet been issued to petitioners but also because they have presented no positive and convincing evidence of private ownership over the same except the claim that they are the heirs of Hermogenes Lopez. Now, while it is true that Hermogenes Lopez had filed an application for a Homestead Patent over the subject land, and his application was determined as superior to the claims of other persons by the court, such determination in the cases that finally reached the Supreme Court did not bind the government, particularly the Lands Management Bureau. (sic) The cases cited by petitioners as having declared the subject land as private property because the homestead patent thereon was confirmed by the Supreme Court did not LMB for two reasons: (1) it was not, and was not impleaded as, a party to said cases, and (2) the cases were in personam in nature, in which while the subject thereof was a right over a piece of land, the controversy was in essence between different persons asserting conflicting claims. The subject property being part of the public domain is within the exclusive jurisdiction of the Lands Management Bureau. (sic) It is not only mandated by the Public Land Act but the Supreme Court itself

has declared it to be so in Cerdon vs. Court of Appeals, 184 SCRA 198, 200, to wit: The function of administering and disposing of lands of the public domain in the manner authorized by law, is not entrusted to the courts but to executive officials. Originally, it was the Director of the Bureau of Lands primarily, and ultimately, the Secretary of Agriculture and Natural Resources, who had this function. Section 4 of the Public Land Act (Commonwealth Act No. 141) declared that subject to the control of the Secretary of Agriculture and Commerce, the Director of Lands shall have direct executive control of the survey, classification, lease, sale or any other form of concession or disposition and management of the lands of the public domain, and his decisions as to questions of fact shall be conclusive when approved by the Secretary of Agriculture and Commerce. Thus, initially within the exclusive jurisdiction of the Director of Lands were such questions as the adjudication of the conflicting claims of rival claimants to public land, or cases involving disposition and alienation of public lands. (184 SCRA, pp. 200-201) As above adverted to, in its decision of January 5, 1995, the Department of Environment and Natural Resources (DENR), found that the actual occupants of the land under controversy were the spouses Elino and Lucia Adia, who possessed the same from 1929 to 1943. Thereafter, their heirs took over and continued possession thereof. Such a factual finding arrived at by the DENR is conclusive upon the courts. Conformably, in G.R. No. 110900 (Marcelino Lopez, et al., vs. Court of Appeals, et al.) this Court affirmed the ruling of the Lands Management Bureau in favor of the Adias. In Pindangan Agricultural Co., Inc. vs. Dans, 4 SCRA 1035 (1962), the Court held: It should be remembered that the disposition of public lands is lodged exclusively in the Director of Lands subject only to the control of the Secretary of Agriculture and Natural Resources. . . . Consequent to the power and discretion granted the Director of Lands as set forth above, the courts have no power to review, reverse or modify his decisions, as approved by the Secretary of Agriculture and Natural Resources . . .

So also, in Vda. De Calibo vs. Ballesteros, 15 SCRA 37, it was ruled that the Director of Lands, who is the officer charged with carrying out the provisions of the Public Land Law, has control over the survey, classification, lease, sale or any other form of concession or disposition and management of the public lands, and his finding and decision as to questions of fact, when approved by the Secretary of Agriculture and Natural Resources (now Secretary of Environment and Natural Resources), is conclusive. In view of the foregoing ratiocination, disquisition and findings, this Court is of the irresistible conclusion, and so holds, that the ruling in G.R. No. 110900 prevails over the disposition in G.R. No. 90380. It bears stressing that under Public Land Act, the disposition of public lands is exclusively vested in the Lands Management Bureau (LMB) subject only to the control of the Secretary of Environment and Natural Resources (DENR). Since what has been litigated upon is a disposable public land, under the power of administration and disposition of the Bureau of Lands (now the Lands Management Bureau), subject only to the control of the Secretary of the Department of Environment and Natural Resources; it is not proper to deprive the Lands Management Bureau which "absorbed the functions and powers of the Bureau of Lands, abolished by Executive Order No. 131, except those line functions and powers thereof which are transmitted to the regional field offices", of its direct executive control over the disposition and management of the public domain, any more that it can divest the State of its title and confer it to another (Espinosa vs. Makalintal, 79 Phil 134). In Benguet Exploration, Inc. vs. DAT, G.R. No. L-29534, February 28, 1977, this Court, citing Pinero vs. Director of Lands [57 SCRA 386], ruled: . . . even a torrens title is not a bar to the power of the Director of Lands to investigate an allegation of fraud that could have led to the issuance of a free patent. As stated by him: "It is to the public interest that one who succeeds in fraudulently acquiring a title to a public land should not be allowed to benefit therefrom, and the State should, therefore, have an ever existing authority, thru its duly authorized officers, to inquire into the circumstances surrounding the issuance of any such title . . .. Although G.R. No. 90380 (Eduardo Santos vs. CA, et al.) was decided ahead of G.R. No 110900, the Court holds that the latter case was not barred by the doctrine of "law of the case." The doctrine of "law of the case" means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case so long as the facts on which

such decision was predicated continue to be the facts of the case before the Court [Mangoma vs. CA, 241 SCRA 21]. In short, the doctrine applies only when a case is before a Court a second time after a ruling by an appellate court (Kilosbayan, Inc., vs. Morato, 246 SCRA 540). In the two cases (G.R. No. 90380 and G.R. No. 110900) under consideration, the subject matter is the same but there a no identity of parties and causes of action. As found by the Court of Appeals in CA G.R. No. SP 27602, the Adias and the Lands Management Bureau were not parties in what eventually became G.R. No. 90380. What is more, the said case merely involved the issue of possession, on which the claim of the Lopezes was anchored or based on their alleged homestead application over subject public land. On the other hand, the case of the Lands Management Bureau (LMB) which became G.R. 110900, squarely put in issue the validity of the alleged homestead patent of the Lopezes, on the ground that its issuance was tainted with fraud. It is thus succinctly clear that the ruling in G.R. No. 90380 cannot be the "law of the case" as to bar G.R. No. 110900. The Orders issued on June 24, 1991 and October 8, 1992, respectively, by Branch 71 of the Regional Trial Court in Antipolo, Rizal (now Antipolo City) are void for lack of any legal basis. All things studiedly considered and viewed in proper perspective, the Court upholds the disposition of subject public land, now covered by Original Certificates of Title Nos. P-819, P-820, P-821, P-822, P-823, P-824, P-825 and P-826, in favor of the Heirs of Elino Adia, represented by Juliana Adia, by the Lands Management Bureau and approved by the Department of Environment and Natural Resources and the President. WHEREFORE, 1. The validity of Original Certificates of Title Nos. P-819, P-820, P-821, P-822, P-823, P-824, P-825 and P-826, registered in the name of Heirs of Elino Adia, represented by Juliana Adia, is UPHELD; 2. All certificates of title issued to the Heirs of Hermogenes Lopez and succesorsin-interest, and all titles originating from any of the certificates of title so issued to the Heirs of Hermogenes Lopez, including Transfer Certificates of Title Nos. 207990, 207991, 207992, 207993, 207994, 207995, 207996, 207997, 207998, 207999, 208000, 208001, 208002, 208358, over subject tract of land, as well as TCT No. 216876 issued to Primex Corporation, and any other title derived therefrom are declared null and void.

3. The Heirs of Hermogenes Lopez and all persons claiming any right under them, including but not limited to Primex Corporation, and Dr. Potenciano Malvar, as well as all members of the Overlooking Storeowners and Planters' Association, Inc., their assignees and successors-in-interest, are ordered to remove all their improvements on the areas covered by the Original Certificates of Titles Nos. P-819 to P-826 aforementioned and to surrender possession thereof to their Heirs of Elino Adia, represented by Juliana Adia; and 5. The writ of demolition, issued by Branch 71 of the Regional Trial Court, Antipolo City, in Civil Case No. 463-A, is SET ASIDE. No pronouncement as to costs. SO ORDERED.

G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS,Petitioners, vs. THE COMMISSION ON ELECTIONS, Respondent. x--------------------------------------------------------x ALTERNATIVE LAW GROUPS, INC., Intervenor. x ------------------------------------------------------ x ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors. x------------------------------------------------------ x ATTY. PETE QUIRINO QUADRA, Intervenor. x--------------------------------------------------------x BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson Concepcion BragasRegalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human Rights, Intervenors. x--------------------------------------------------------x LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL,Intervenors. x--------------------------------------------------------x

ARTURO M. DE CASTRO, Intervenor. x ------------------------------------------------------- x TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor. x---------------------------------------------------------x LUWALHATI RICASA ANTONINO, Intervenor. x ------------------------------------------------------- x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors. x ------------------------------------------------------- x RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors. x -------------------------------------------------------- x PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors. x -------------------------------------------------------- x SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor. x ------------------------------------------------------- x SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor. x ------------------------------------------------------- x JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors. x -------------------------------------------------------- x

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors. x --------------------------------------------------------x SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors. x -----------------------------------------------------x JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors. x -----------------------------------------------------x G.R. No. 174299 October 25, 2006

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

DECISION

CARPIO, J.: The Case These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution. Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelveper centum (12%) of all registered voters, with each legislative district represented by at least three per centum(3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals. The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.7 The Ruling of the COMELEC On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the Constitution.9

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people." In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the Binay Group's petition as an opposition-inintervention. In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of initiative." Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the minimum requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject. The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties' memoranda, the Court considered the case submitted for resolution. The Issues The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people's initiative; 2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and 3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition. The Ruling of the Court There is no merit to the petition. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections. 1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to propose amendments to the Constitution. This section states: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x x (Emphasis supplied) The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people through initiative upon a petition," thus: MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President. MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not they want to propose this constitutional amendment. MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature.13 (Emphasis supplied) Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must "prepare that proposal and pass it around for signature." The essence of amendments "directly proposed by the people through initiative upon a petition" is thatthe entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing.

The framers of the Constitution directly borrowed14 the concept of people's initiative from the United States where various State constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the unbending requirement is that the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed amendments.16 The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, inCapezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared: [A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied) Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained: The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x (The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.") (Emphasis supplied) Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories." The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures. Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra. The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full: Province: Legislative District: City/Municipality: Barangay: No. of Verified Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof. Precinct Number Name Last Name, First Name, M.I. 1 2 3 4 5 6 7 8 9 10 _________________ Barangay Official (Print Name and Sign) _________________ Witness (Print Name and Sign) __________________ Witness (Print Name and Sign) Address Birthdate MM/DD/YY Signature Verification

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of

the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution. Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition. The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended petition almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as follows: I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass of signatories hereto. (Emphasis supplied) The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the full text of Resolution No. 200602, which provides: RESOLUTION NO. 2006-02 RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to support

the proposals of the People's Consultative Commission on Charter Change; WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005; WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005; WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious form of amending the 1987 Constitution; WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to pursue the same; WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION; DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied) ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The proposals of the Consultative Commission24 arevastly different from the proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC.

For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory Provisions. The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes. In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared: After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed amendments. The Lambino Group did not allege that they were amending the petition because the amended petition was what they had shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments." The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft petition together with the signature sheets. The signature sheets do not also contain any indication that the draft petition is attached to, or circulated with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they circulated the "petition for initiative filed with the COMELEC," thus: [T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have understood the proposition contained in the petition. (Emphasis supplied) The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was the draft of the amended petition of 30 August 2006. The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a proposed changeattached to the petition signed by the people. Even the authority the Lambino Group quotes requires that the proposed change must be attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself. Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet. It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that they printed

and circulated, together with the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the signature-gathering period, the Lambino Group admitted circulating only very limited copies of the petition. During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies of the draft petition but he could not state with certainty how many additional copies the other supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies. Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x."25 This admission binds the Lambino Group and establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority of the people who signed the signature sheets. Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not exceed 1,000,000. With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more than one million signatories saw the petition before they signed the signature sheets. In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment.Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also

obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution. For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are: 1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected indefinitely;26 2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the expiration of their own term of office; 27 3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further amendments or revisions to the Constitution.28 These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people who signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets. During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this. The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states: Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held

simultaneously with the election of all local government officials. x x x x (Emphasis supplied) Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year. Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word "next" before the phrase "election of all local government officials." This would have insured that the elections for the regular Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word "next" allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections. Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation. This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections. The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides: Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative. Section 4(4) is a subject matter totally unrelated to the shift from the BicameralPresidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable. Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared: Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis supplied) Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling: Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process. The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers and eventual voters. Many voters will never read the full text of the initiative

before the election. More importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied) Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution. Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the Constitution. However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the people do not even know the nature and effect of the proposed changes. There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states: Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010. After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House of Representatives to theexclusion of the present Senators. The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of Representatives. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot behidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition. In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition." 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides:

ARTICLE XVII AMENDMENTS OR REVISIONS Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members, or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. (Emphasis supplied) Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative. Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission: MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the

Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x x xxxx MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ: That is right. Those were the terms envisioned in the Committee. MS. AQUINO: I thank the sponsor; and thank you, Madam President. xxxx MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." MR. MAAMBONG: Thank you.31 (Emphasis supplied) There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the

Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32the Supreme Court of California ruled: The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied) Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33 It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be altered by those who favor amendments, revision, or other change only through the use of one of the specified means. The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from an examination of the measure here in question that it is not an amendment as that term is generally understood and as it is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x. To call it an amendment is a misnomer. Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34 It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extraconstitutional and revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied) This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution that a people's initiative may only amend, never revise, the Constitution. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner: [T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied) Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions."36 The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches."38 A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances."39 Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's

proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a UnicameralParliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a BicameralPresidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution.41 (Emphasis supplied)

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows: The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. xxxx We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer. The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied) The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative

departments. The initiative in Adams did not even touch the executive department. In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the initiative in Adams. The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor. Thus, the Lambino Group makes the following exposition of their theory in their Memorandum: 99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions. 100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.45 Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus: Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it does not affect proposed revisions initiated by the people. Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be enacted through the initiative process. They assert that the distinction between amendment and revision is determined by reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it

violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature. We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said: "From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate." x x x x Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed by initiative. (Emphasis supplied) Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language of the Constitution. We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a

revision.48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.49 The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states: Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate constitutional amendment. Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that. The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government." Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries withunicameral parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift from the present BicameralPresidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the Constitution. In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution

limiting the scope of a people's initiative to "[A]mendments to this Constitution." 3. A Revisit of Santiago v. COMELEC is Not Necessary The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution. This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.51 Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735. Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories." The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the petition and

amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group claims as valid. The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail. 4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling inSantiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. 5. Conclusion The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself. To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country.

An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast53 approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution. No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. WHEREFORE, we DISMISS the petition in G.R. No. 174153.